Bush Invokes Executive Privilege to Shield Cheney’s Role in Outing Valerie Plame

Working on confirmation now, but I’m hearing word that George Bush just took his second step in the cover-up of Cheney’s leak of Valerie Wilson’s identity–by invoking executive privilege to shield Cheney’s interview with Fitzgerald.

No, I’m not surprised by this, if this turns out to be true. But if IS true, then it marks the second time that Bush will have used his privileges to shield something either terribly embarrassing–or downright illegal.

Update: Oversight Committee won’t confirm–but they have postponed their vote on contempt for Attorney General Mukasey to review their options.

Update: Here are the documents (Mukasey to Bush; Mukasey to Waxman). Note, Mukasey asked Bush to invoke executive privilege over this. What a fucking corrupt disgrace.

Update: Here’s Mukasey:

I am greatly concerned about the chilling effect that compliance with the Committee’s subpona would have on future White House deliberations and White House cooperation with future Justice Department investigations. For the reasons set forth above, I believe it is legally permissible for you to assert executive privilege. I respectfully request that you do so.

Shorter Mukasey: "Please don’t make me go to jail to cover-up the Vice President’s smear job!!"

Update: Waxman hits the right notes:

The claim of executive privilege is ludicrous.
We are not seeking access to the communications between the Vice President and the President. We are seeking access to the communications between the Vice President and FBI investigators. The Vice President talked with the FBI investigators voluntarily and he did so knowing that what he said could be disclosed publicly in a criminal trial. Mr. Fitzgerald told us that "there were no agreements, conditions and understandings" that limited Mr. Fitzgerald’s use
of the interview in any way.

This unfounded assertion of executive privilege does not protect a principle; it protects a person.

The President is wrong to shield Vice President Cheney from scrutiny. In our system of government, even the Vice President should be accountable for his actions.

  1. bmaz says:

    Oh no he didn’t did he? Yikes. Problem is, when the Congressional Jets refuse to protect their home turf, the Administration Sharks piss all over it.

    • emptywheel says:

      Remember, this is Waxman’s first go around with this stuff. And given that Bush did NOT invoke EP when Cheney first testified, hard to see how it’s legitimate here.

      • bmaz says:

        Well yeah, I didn’t even bother with that, which goes without saying. Said all along, privileges are subject to waiver.

  2. Loo Hoo. says:

    Heard back from the DOJ, EW? I’ve been holding my breath and it’s getting difficult.

    • brendanx says:

      Thank you. This answers my question: if “Executive privilege…extends to all Executive Branch deliberations”, how does one investigate deliberations about how to commit a crime?

      • JThomason says:

        It all leads to a Adam Kidan, a DEA operative, an Italian/Israeli arm’s dealer, a Venezuelan/FARC double agent,Russian mafia kingpin and a Tibetan midget having Mai Tais by the swimming pool at the St. Martin Beach Club & Casino in the Dutch Antilles with large stacks of Euros, Dollars and automatic weapons on the table. It was agreed that action needed be taken no matter who ultimately would be left holding the bag, the global media angle was covered and that there were friends in the White House. A little jail time would be part of the work.

        It gets awfully hazy after this and I had to make great inferential leaps to posit this meeting. The one outstanding question though is where was Francis Brooke?

  3. yellowsnapdragon says:

    ‘cept if they did insta declassification I guess they made outing a spy legal. Asses.

  4. klynn says:

    Thanks for starting a thread on this. Kind of highjacked the end of your “Lying Sack” thread to start discussion on this. Sorry.

  5. WilliamOckham says:

    I almost agree with Mukasey. Here’s the crux of his argument:

    The only subpoenaed document that the Committee addresses with any particularity is the Vice President’s interview report, which the Department has not made available for review because of heightened separation of powers concerns. Despite repeatedly referencing the report, however, the Committee never articulates any legitimate legislative interest in the document that might outweigh an executive privilege claim. Instead, the Comminee simply reiterates its general interest in White House procedures for handling classified information, July 8 Committee Letter at 6, and broadly asserts that “this Committee and the American people are entitled to know” about the Vice President’s conduct in the Plame matter, id. at 2.

    These general assertions fall well short of the “demonstrably critical” particularized need required to overcome an executive privilege claim.

    By not using impeachment as the lever, the Congress has weakened its case for getting these documents.

    • emptywheel says:

      Oversight CAN’T use impeachment; they’re not the ones that get to impeach. HJC–which has a pending subpoena to Mukasey specifically citing the President’s pardon power–can. And HJC’s claim is much more on point.

      • WilliamOckham says:

        I disagree. The idea that impeachment has to start in the Judiciary Committee is strictly tradition. There’s no reason that Waxman can’t start his own impeachment investigation for later referral to Conyers’ committee.

        • bmaz says:

          It may be tradition, but it has been ingrained into their internal rules and procedures for impeachment consideration at this point. Like any other internal rule, it could be changed. I am sure not Congress, but I have two other beefs with what is going on here. First off, per your @13, I don’t think their assertion has validity because the time for proper assertion of EP was when negotiating with Fitz; that time has passed and been thus waived. There should be no relative strength to an assertion of EP that is fraudulent and illusory to begin with. Secondly, where the hell does the AG get off affirmatively demanding the President to assert EP??? That is completely bass ackwards.

          • WilliamOckham says:

            Waxman’s committee could initiate an impeachment investigation. The House rules don’t actually mention impeachment. The Judiciary Committee asserts jurisdiction because they have jurisdiction over:

            The judiciary and judicial proceedings, civil and criminal


            The Oversight Committee could start the investigation under this rule:

            In addition to its duties under subparagraph (1), the Committee on Oversight and Government Reform may at any time conduct investigations of any matter without regard to clause 1, 2, 3, or this clause conferring jurisdiction over the matter to another standing committee. The findings and recommendations of the committee in such an investigation shall be made available to any other standing committee having jurisdiction over the matter involved.

            Waxman uses this rule all the time. All he has to do is say “this is an impeachment investigation” and his case is that much stronger. I grant you that he should coordinate with Conyers, but still it’s there for him to use and it doesn’t require any rule changes.

            • emptywheel says:

              There’s one more problem with this.

              Waxman’s stated reason for investigation is that he needs to make sure the Administration is following guidelines on classified information. He hasn’t even held a hearing on fucking pixie dust, which might elevate it, but for now, it’s a relatively non-urgent reason for it.

              HJC’s reason for investigation: the propriety of pardons, is much more appropriate for an impeachment investigation. Madison himself has bought off on that.

              Waxman’s letter makes it clear that he sees the crime here (I’m doing a post on that now). But he hasn’t stated he wants the information for the reason he really does.

            • bmaz says:

              WO, I don’t disagree with you; however, there is a document, and I cannot seem to find it now, that I recall seeing that is something along the lines of “House Procedure Upon Impeachment” or something analogous to that. I think it was published by the House I believe. I looked for it the other day and could not find it in a quick search then either. But I saw it back last fall when the gig was still at TNH and I was researching some point or another. In it, was a recitation of the same principle about it beginning in HJC. As you note, that could be changed quite simply, likely by just doing something different. However, they are creatures of rule and practice over there, and I agree with Marcy, Waxman just isn’t going to do it.

      • HelplessDancer says:

        As long as the threat of impeachment is off the table, there is no threat to keep McCheney from telling congress fuck you. Impeachment hearings are the only way to short circuit the specious Bush claims to executive privilege.

  6. SaltinWound says:

    Does this privilege even belong to Bush? The interview already exists. I hope the Democrats do something about this and politicians like Levin don’t just blame a lack of oversight from two years ago. Honestly, it’s why holding him accountible yesterday seemed important to me, even though I didn’t jump in. At some point, if we’re overly polite to the enablers in Congress who continue to do nothing, we are complicit in torture as well.

  7. WilliamOckham says:

    Just so there’s no doubt, from Asst. AG Nelson’s letter to Waxman:

    Accordingly,the Attorney General has requested that the President assert executive privilege with respect to these documents, and the President has done so.

  8. DefendOurConstitution says:

    Unfortunately, Waxan will probably hem and Haw for a few months. I doubt we’ll see contempt vote before election. All talk, no action.

  9. AlbertFall says:

    Subpoena Fitz for a full week discussion session on camera on everything he knows about Plame, including any details he can recall on the Cheney interview.

    If Cheney wants to refute the testimony, he can turn over the interview.

    • MrWhy says:

      My analogy isn’t great, but that is like asking an attorney to testify to his client’s conversations about a crime when the defendant has asserted his fifth amendment right.

      • bmaz says:

        It is not that Fitz wouldn’t do it, it is that he can’t. Much of that info in Rule 6 protected GJ material he cannot disclose, other is prosecutorial work product that he should ethically not disclose and that Congress has historically never obtained. But mostly, it is that the privilege would be asserted by the Whit House and the DOJ, and at that point Fitz is obligated to let others sort it out, not just unilaterally decide who is right or wrong on the privilege assertion himself. So, the scenario just ain’t happening.

  10. LS says:

    Hmmm…from Mukasey’s letter to Bush:

    “Other portions of the documents fall “within the scope
    of presidential communications component of the privilege because they summarize deliberations among your most senior advisers in the course of preparing information or advice for presentation to you, including information related to the preparation of your 2003 State of
    the Union Address and possible responses to public assertions that the address contained an inaccurate statement.”w

  11. LS says:

    None of the EP should relate to Cheney, because Addington said that he is not part of the Executive Branch at all.

    • MarkH says:

      None of the EP should relate to Cheney, because Addington said that he is not part of the Executive Branch at all.

      Barnacle to the Congress he is. Heh.

  12. WilliamOckham says:

    This is as good a time as any to quote one of my former professors:

    My faith in the Constitution is whole, it is complete, it is total. I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction of the Constitution.

    The powers relating to impeachment are an essential check in the hands of this body, the legislature, against and upon the encroachment of the Executive. In establishing the division between the two branches of the legislature, the House and the Senate, assigning to the one the right to accuse and to the other the right to judge, the framers of this Constitution were very astute. They did not make the accusers and the judges the same person.

    We know the nature of impeachment. We have been talking about it awhile now. It is chiefly designed for the President and his high ministers to somehow be called into account. It is designed to “bridle” the Executive if he engages in excesses. It is designed as a method of national inquest into the conduct of public men. The framers confined in the Congress the power, if need be, to remove the President in order to strike a delicate balance between a President swollen with power and grown tyrannical and preservation of the independence of the Executive. The nature of impeachment is a narrowly channeled exception to the separation of powers maxim; the federal convention of 1787 said that. It limited impeachment to high crimes and misdemeanors and discounted and opposed the term, “maladministration.” “It is to be used only for great misdemeanors,” so it was said in the North Carolina ratification convention. And in the Virginia ratification convention: “We need one branch to check the others.”

    The North Carolina ratification convention: “No one need to be afraid that officers who commit oppression will pass with immunity.

    Common sense would be revolted if we engaged upon this process for petty reasons. Congress has a lot to do: Appropriations, tax reform, health insurance, campaign finance reform, housing, environmental protection, energy sufficiency, mass transportation. Pettiness cannot be allowed to stand in the face of such overwhelming problems. So today we are not being petty. We are trying to be big, because the task we have before us is a big one.

    At this point, I would like to juxtapose a few of the impeachment criteria with some of the President’s actions.

    Impeachment criteria: James Madison, from the Virginia ratification convention. “If the President be connected in any suspicious manner with any person and there is grounds to believe that he will shelter him, he may be impeached.”

    the President has engaged in a series of public statements and actions designed to thwart the lawful investigation by government prosecutors. Moreover, the President has made public announcements and assertions bearing on the case which the evidence will show he knew to be false. These assertions, false assertions; impeachable, those who misbehave. Those who “behave amiss or betray their public trust.”

    James Madison, again at the constitutional convention: “A President is impeachable if he attempts to subvert the Constitution.”

    The Constitution charges the President with the task of taking care that the laws be faithfully executed, and yet the President has counseled his aides to commit perjury …

    If the impeachment provision in the Constitution of the United States will not reach the offenses charged here, then perhaps that eighteenth century Constitution should be abandoned to a twentieth century paper shredder.

    Has the President committed offenses and planned and directed and acquiesced in a course of conduct which the Constitution will not tolerate? This is the question. We know that. We know the question.

    We should now forthwith proceed to answer the question.

    It is reason, and not passion, which must guide our deliberations, guide our debate, and guide our decision.

    Mr. Chairman, I yield back the balance of my time.

    Barbara Jordan, July 25, 1974

    It’s amazing how much of the specifics of her speech still apply, not to mention the general principles. One of her colleagues on the committee that day was John Conyers.

  13. pajarito says:

    The house lost all respect as a governing body when Speaker Pelosi took impeachment off the table. They have earned the contempt they get from the White House.

    Congress? ….SO!

  14. Hugh says:

    As I said yesterday re Rove’s refusal even to show up, the merits of Bush’s assertion of executive privilege are irrelevant. They are just making this stuff up. They could just as easily invoke the Peter Pan-Tinkerbell principle. It doesn’t matter. As long as the Congress doesn’t challenge them on this, and they haven’t for 7 1/2 years, Peter Pan and Tinkerbell trump the Constitution and the Congress’ Article I powers.

  15. dude says:

    When this kind of thing arises–another opportunity for the Congress to exert itself ob hehalf of itself and the good the American people—Congress fails to respond properly. Talk about “ingrained” behavior and “internal rules”. The internal rule here is that Congress and the Democrats in particular have no interest in performing their duties. Dennis Kucinich has formally called for impeachment consideration before Conyers’ committee and is it reported he will get ‘consideration’ formally, but Conyers has already told the press there will be no impeachment coming out of his committee. Waxman is an ardent “letter to the editor” writer, and the extent of his bulldog nature is to harass with pointed letters. What has he really done? HIs claim can only be “I threw light on the subject. It’s up to the American People to decide what to do.” He too, by the way, has publicly stated he does not favor impeachment because he doesn’t see evidence of a worthy crime.

    So while we are all hot and bothered today over this development of Mukasey urging the Prez to proclaim EP over an recorded interview with his Barnacle Branch Brother, I want someone to tell me: Where is the Crime?–Because that is the only thing the Congress will move on. They saw the crime with Bill Clinton and called it “perjury”, a crime almost everybody down to street-level understands. What is comparable in the present circumstance that will move Congress off-center?

    This is essentially the criticism of lots of others : John Dean, Gary Hart–they want something people can understand and get outraged over. A crime everyone can understand.

    • Hugh says:

      “High crimes and misdemeanors” are what the Congress says they are. There is no criminal code which enumerates them. So the idea that there must be such an infraction before initiating an impeachment proceeding is a pure smoke screen and a justification for inaction.

      Lying the country into a trumped up war, spying on Americans, negligence in the run up to 9/11, sitting back while a major American city drowned, violating the separation of powers, trampling on the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments, engaging in torture, detention without trial, the list goes on but the central point is that these are all infinitely weightier than perjury over a private sexual matter. And if these do not provide grounds for impeachment then there are no substantial reasons to impeach a President ever.

      I would finally point out that impeachment is a process. The initial phase is an investigation. It is this uncovering of events that no stonewalling or invocations of privilege can prevent that truly provides the evidence and legal charges for a bill of impeachment. So when members of Congress say well we see no crime or we do not have sufficient evidence of one they are merely seeking to pull the wool over your eyes and duck their Constitutionally mandated responsibilities.

    • DeadLast says:

      Dude, Nixon’s crime was a cover-up. Bush’s crimes include 1)covering up the illegal outing of a CIA operative by the VP. Crimes, Crimes, Crimes. 2) Intentionally lying to congress in the SOTU address. A crime (you see what would happen to you if you lied to Congress). 3) Firing USAttys who would not follow your “political” agenda. Crimes.

      And this is the top of the list. There was also this thing about false evidence to invade a foreign country and kill millions (okay, those things happen all the time). But what about torture? Both a US and International War Crime (why is Jay Bybee still on the bench in the 9th Circuit?)

      There is enough here that even Saint Ronald Reagan would have felt compelled to investigate and prosecute (especially if GWB were a Dem).

      So Dude, like you asked, where is the easy crime? I hope you were asking that rhetorically, because my head almost exploded. BTW, can you front me some medical herb, cuz I know you’re smokin something…

    • lexalexander says:

      [[I want someone to tell me: Where is the Crime?–Because that is the only thing the Congress will move on.]]

      Serial violations of FISA, already admitted to by the president, are felonies, each count punishable by five years in prison. Violating the Geneva Accords (Common Article 3 in particular) are violations of U.S. and international law — war crimes.

      They’re crimes, all right, but Congress hasn’t moved on them and appears unlikely ever to do so.

  16. brendanx says:

    I like this:

    Were future Presidents, Vice Presidents and senior White
    House staff to perceive that providing voluntary interviews in the course of Justice Department
    investigations would create records that would likely be made available to Congress (and then
    possibly disclosed publicly outside ofjudicial proceedings such as a trial), there would be an
    unacceptable risk that such knowledge could adversely impact their willingness to cooperate
    fully and candidly in voluntary interviews….Such a result would significantly impair
    the Department’s ability to conduct future law enforcement investigations where such
    investigations would benefit from full and voluntary White House cooperation.

    If you try to investigate this crime further, it might force future Republican presidents to stonewall immediately instead of going through the farce of cooperating.

    • behindthefall says:

      Isn’t that incredible? Future politicians in high places might have to make peace with the idea that, yeah, they work for us and their deliberations and actions will always be open to scrutiny by representatives of The People.

      There have certainly been countless forms of government where such scrutiny did not occur and the powerful could deliberate and scheme in secret, but just this once, just this one time in the United States of America, WE THOUGHT THAT WE WOULD DO IT DIFFERENTLY, IF YOU DON’T MIND!!!

      If an aspiring politician doesn’t like those preconditions, well, don’t run: nobody’s forcing ya.

  17. FormerFed says:

    I certainly hope I am wrong, but I just don’t believe the Demos in Congress have the cojones to do anything except talk. And I am getting more concerned that even if Obama is elected and the Demos increase their majority that nothing will happen on real investigation of the Bushies.

  18. Leen says:

    Does “executive privilege ” apply to the “barnacle” branch that Cheney operates out of?

    What can be done now?

  19. brendanx says:

    What would citing Mukasey for contempt lead to? How would that theoretically be enforced?

  20. DeadLast says:

    …and Nixon should have used Executive Privilege to stop the investigation of Agnew…

    …and why then didn’t the Repugs think Clinton should have used Executive Privilege to cover up Monica or Paula — seems they went to the Supremes to get there way…

    …oh I know what it is…Bush and Mukasey realize that Halliburton, Carlyle, ExoChevroTex, BofA etc. can still bleed a bit more wealth out of the Tresury but it will take another six months…

    • MrWhy says:

      Had Clinton and Lewinsky discussed issues of import for national security? Was Lewinsky tasked with providing advice to the President on related matters? Then Clinton could have asserted EP according to Mukasey.

  21. Arbusto says:

    It would be nice if Fitz., or a true hero, would release the Prez/VPres interviews ala Daniel Ellsberg and let the chips fall where they may. Since no one inside the Beltway is held responsible for illegal acts, what is there to fear?

    • FrankProbst says:

      It would be nice if Fitz., or a true hero, would release the Prez/VPres interviews ala Daniel Ellsberg and let the chips fall where they may. Since no one inside the Beltway is held responsible for illegal acts, what is there to fear?

      It’s just not his style.

      • Leen says:

        I thought Fitz said that “truth is the engine of our judicial system”. If he truly believes this I hope he puts his style aside and exposes the engine!

        Remove those clouds.

    • skdadl says:

      Since no one inside the Beltway is held responsible for illegal acts, what is there to fear?

      Oh, but some people are. The admin think their own criminal leaks are ok, but if anyone leaks something damaging to them, they will suddenly rediscover inquiries and laws. I’ve just been reading the Scott Horton/Jean Mayer “six questions” interview, and her recounting of what was done to Jessica Raddack (for giving good advice about the interrogation of Lindh) is chilling.

  22. FrankProbst says:

    Yawn. It was already clear-cut obstruction of justice when Bush commuted Libby’s sentence. Congress won’t do a damn thing on this, which is only 99%-certain obstruction of justice.

  23. LS says:

    This really ticks me off:

    “The subpoenaed documents concern the Department’s investigation by Special Counsel Patrick Fitzgerald into the disclosure of Valerie Plame Wilson’s identity as an employee of the Central lntelligence Agency.”

    Doesn’t Mukasey know that she was “covert”? Maybe that’s why he thinks this is no big deal…

      • LS says:

        Or it was deliberate in that had it stated “disclosed the identity of a covert CIA agent”…it would have implied that there was a crime, which would make everything else he said in the letter to Bush a “blatant” obstruction of justice via the use of EP.

        • emptywheel says:

          Yup. I also think that’s the reason he asked Bush for EP. HAd Bush done it on his own, it would have clearly been obstruction, just like the commutation. This way, they get to skate through that.

      • FrankProbst says:

        Interesting point. He’s been reading too much Free Republic, I guess.

        No, he hasn’t. He either knows–or at least strongly suspects–that Cheney claims to have insta-declassified her status prior to the leak. And that’s what the FBI interview will show. That’s why team Libby got so upset in the sentencing phase of the trial. They started to argue that Plame was not covert, so Libby’s sentence should not have been based on obstructing on investigation into an IIPA violation. Walton said they should have brought this up earlier in the sentencing, and Team Libby immediately let it drop. Possibly because they realized that they’d made a serious legal blunder, but more likely because they got a phone call saying they shouldn’t worry too much about the sentence.

  24. Leen says:

    I so want to believe
    “. It is designed as a method of national inquest into the conduct of public men. The framers confined in the Congress the power, if need be, to remove the President in order to strike a delicate balance between a President swollen with power and grown tyrannical and preservation of the independence of the Executive. The nature of impeachment is a narrowly channeled exception to the separation of powers maxim; the federal convention of 1787 said that. It limited impeachment to high crimes and misdemeanors and discounted and opposed the term, “maladministration.” “It is to be used only for great misdemeanors,”

    ##I am trying hard to understand. I just don’t get this part.. if impeachment is truly the only way to get to the crimes committed by Cheney in the Plame/Wilson outing why did they take it off the table so early?

    If as Waxman asserts ” We are not seeking access to the communications between the Vice President and the President. We are seeking access to the communications between the Vice President and FBI investigators.”

    Why is this not the appropriate strategy? If you do not know what the VP’s role was without accessing the communications between the Vice President and F.B.I. investigators” how can you move towards impeachment FIRST?

    Mukasey is obstructing Justice…wtf. (thanks to the Democrats who rolled over and voted for him)

  25. brendanx says:

    I have a question about Waxman’s assertion (and others’ here):

    There is a key document that could explain what the Vice President knew and what he
    did: the report of the Vice President’s interview with FBI officials working for Mr. Fitzgerald.
    If there is one document that could pierce the cloud hanging over the Vice President, this is it.

    Why does he seem so confident that Cheney would have openly admitted authorizing the leak of Plame’s identity. Why mightn’t he just have lied? I understand that Plame’s identity might have been “pixie dusted”, but why the presumption that this came out in the interview?

    • FrankProbst says:

      Why does he seem so confident that Cheney would have openly admitted authorizing the leak of Plame’s identity. Why mightn’t he just have lied? I understand that Plame’s identity might have been “pixie dusted”, but why the presumption that this came out in the interview?

      My guess is that there were a lot of people in the room for that interview, many of whom were appalled by what they heard. And I suspect that one of them probably leaked to Waxman.

      • WilliamOckham says:

        Never underestimate Cheney’s willingness to pick a fight for no other reason than creating a dictatorship restoring the proper role of the executive branch. It is his overarching raison d’etre.

        • Badwater says:

          “restoring the proper role of the executive branch” will be the Republic battle cry if Obama wins.

          • Hugh says:

            “restoring the proper role of the executive branch” will be the Republic battle cry if Obama wins.

            It would be only if they thought Obama was that different from themselves. Cheney didn’t build a Presidential dictatorship as just an 8 year project. He did it because he believes in it and because he believes that a President of either party will use it in more or less the same way.

            • brendanx says:

              You make him sound idealistic. The ideal of a unitary executive (dictatorship) is not the aim — it’s the power to act above the law on behalf of his own allies and party that dictatorship provides; it’s the vehicle for piracy. Cheney understands that Republicans will always have the discipline to challenge, if not sabotage a Democratic president, while there are always enough buyable Democrats to give a patina of legitimacy to that sabotage.

              The “proper role of the executive” is no more an ultimate aim than “spreading democracy” was an aim of invading Iraq.

        • emptywheel says:

          Well let me prove my point via other means.

          David Addington didn’t get EP rights to blow off HJC. In spite of the fact that he CLEARLY advised Bush on torture policies, he still had to go before HJC and answer questions. For some reason, WH didn’t choose to protect that.

          But they did here.

          • WilliamOckham says:

            I was surprised by Addington’s appearance, but I think it was part of the overall delaying strategy and founded in Cheney’s absolute trust in Addington’s ability to obsfucate. Did you notice the difference in Addington’s performance in court in the Libby trial vs. his performance before Congress? Talk about contempt of Congress.

            • WilliamOckham says:

              Obviously obsfucate should be obfuscate. Although, Addington could probably do that, too, if it was a word.

      • brendanx says:

        My question is really part of another thing that’s beyond my comprehending — why wouldn’t Cheney lie? Wouldn’t open admission of leaking an agent’s identity, even a pixie-dusted one, have catalyzed an aggressive investigation and prosecution? I forget the commenter’s handle, but he suggested the other day that Fitzgerald knew of the pixie dusting early on and prosecuted Libby for obstruction precisely because it was the only way of vindicating the public’s interest…to know the facts, if not actually prosecute the malefactor for IIPA.

        • bell says:

          i think you are on the right trACk… it is in cheneys nature to obfuscate or lie.. that he has proven beyond a doubt.

  26. Mary says:

    And given that Bush did NOT invoke EP when Cheney first testified, hard to see how it’s legitimate here.

    Well, I’ll put on my devil’s advocate hat and toss this out –

    The first instance was a situation involving a criminal investigation by a subordinate of the President, subject to the President’s direction and control with respect to use of the information.

    This new effort to access the information does not involve a criminal investigation, or a court proceeding of any kind, and is only a Congressional oversight hearing and the whole reason no EP had to be invoked initially is bc the Special Prosecutor is and was subordinate to the President in a direct chain and could not use the information if directed not to by the President.

    IOW, the Special Prosecutor and the President were never on different sides of the fence – the Special Prosecutor is one of Bush’s lawyers, a direct DOJ employee. No need to invoke privilege when you are the one with control over the info.

    • bmaz says:

      What the heck you doing advocating for the devil? Here we diverge. In the first place if the power relationship you allege was true, what the hell was Bush/Cheney doing having to negotiate with Fitz for conditions? What power would Fitz have had to subpoena them in the first place? And how does this overcome all the traditional principles of waiver? I also don’t know about the assertion that Congress cannot investigate crimes. sure they can, they just cannot charge them other than impeachment. So, in sum, and with great pain, I call hooey on said devil’s advocacy.

    • Leen says:

      ##So why did Fitz so clearly say the ball was in congress’s court the last day of the Libby trial?

      ## When it comes to questions about undermining National Security do the very same “executive privilege” standards apply?

      That last Fitz press conference at the Libby trial

      “MR. FITZGERALD: Okay, I think you have three questions there. I’m trying to remember
      them in order. I’ll go backwards.
      And all I’ll say is that if national defense information which is involved because her affiliation
      with the CIA, whether or not she was covert, was classified, if that was intentionally transmitted,
      that would violate the statute known as Section 793, which is the Espionage Act. That is a
      difficult statute to interpret. It’s a statute you want to carefully apply. There are lots of — I think
      there are people out there who would argue that you would never use that to prosecute the
      transmission of classified information because they think that would convert that statute into
      what is in England, the Official Secrets Act.
      Let me back up. The average American may not appreciate that there’s no law that specifically
      just says if you give classified information to somebody else it is a crime. There may be an
      Official Secrets Act in England but there are some narrow statutes and there’s this one statute
      that has some flexibility in it.
      So there are people who should argue that you should never use that statute because it would
      become like the Official Secrets Act. I don’t buy that theory, but I do know you should be very
      Page 19
      careful in applying that law because there are a lot of interests that could be implicated in
      making sure that you pick the right case to charge that statute.
      That actually feeds into the other question. When you decide whether or not to charge some
      other crime, you want to know as many facts as possible. You want to know what their motive
      is. You want to know their state of knowledge. You want to know their intent. You want to
      know the facts. Let’s not presume that Mr. Libby is guilty, but let’s assume for the moment that
      the allegations in the indictment are true. If that is true, you cannot figure out the right judgment
      to make whether or not you should charge someone with a serious national security crime or
      walk away from it or recommend any other course of action if you don’t know the truth.
      So I understand your question, which is: Well, what if he had told the truth, what would you
      have done? Well, if he had told the truth, we would have made the judgment based upon those
      facts. We would have assessed what the accurate information is and made a decision. We have
      not charged him with a crime. I’m not making an allegation that he violated that statute. What
      I’m simply saying is one of the harms in obstruction is that you don’t have a clear view of what
      should be done, and that’s why when people ought to walk in, go into the grand jury, take an
      oath, tell us the who, what, when, where and why straight. And our commitment on the other
      end is to use our judgment as to what we prosecute and we don’t prosecute to keep quiet. And
      we’re simply saying here we didn’t get the straight story and we had to, had to, take action.

      ### Does Bush’s “executive privilege” stance qualify as new information for Fitz?

      “MR. FITZGERALD: If I can take it with — to answer your question with a bucket of cold
      water and say, let not read too much into it — any new information that would ever come to light,
      while the investigation is opened would be handled by our investigative team concerning these
      facts. So if there’s anything that we haven’t learned yet that we learn that should be addressed,
      we will address it. We don’t want to create any great expectations out there by giving sort of a
      general answer.

      “Any notion that anyone might have that there is a different standard for a high official or that this
      is somehow singling out obstruction of justice or perjury is upside down. If these facts are true,
      if we were to walk away from this and not charge obstruction of justice as perjury, we might as
      well just hand in our jobs because our jobs in the criminal justice system is to make sure people
      tell us the truth. And when it’s a high level official in a very sensitive investigation, IT IS A VERY, VERY SERIOUS MATTER THAT NO ONE SHOULD TAKE LIGHTLY .

      if we were to walk away from this and not charge obstruction of justice as perjury, we might as
      well just hand in our jobs because our jobs in the criminal justice system is to make sure people
      tell us the truth. And when it’s a high level official in a very sensitive investigation, it is a very,
      very serious matter that no one should take lightly.

      #### I have a strong strong NOTION that there are different standards for high officials even when it comes to them undermining National Security. A very very strong notion.

  27. PhilTBastid says:

    Why don’t they start impeachment proceedings on Mukasey and subpoena the interview as evidence that he solicited a false claim of executive privilege from the president as a means to prevent his compliance with a lawful congressional subpoena?

    How about dereliction of duty for Mukasey?

  28. rwcole says:

    This executive privilege thing is bullshit- is there a way around it? Maybe not with only six months left. Clusterfuck’s in a four corner stall and the clock’s runnin down.

  29. LS says:

    According to my quote of Mukasey’s letter to W at #23, it sounds to me that what they don’t want to be known is that they knew they were lying in the SOTU by inserting the 16 words, and there is documentation showing how they would deflect charges that it was a lie…at the time they decided to insert it into the speech. They don’t want the public to really know and understand that they deliberately and knowingly put it into the SOTU address to gain public support of citizens to go off and die for their Iraq agenda…after all…that is part of Kucinich’s impeachment charges.

  30. Mary says:

    65 – I haven’t read the letter and I’m not flattered by the comparison, but I think it’s probably technically correct. I know that Fitzgerald struggled in the pretrials to get Walton to not align him with CIA, etc. but he was acting as an in-house DOJ lawyer and Bush never recused and Fitzgerald himself is on file in pleadings agreeing to Bush’s and the AG’s ultimate control over the Spec Counsel’s office. So I don’t think Bush has to claim privilege in discussions with one of his lawyers or have his senior advisors assert privilege when they are talking to a lawyer within Bush’s chain of control and command.

    If there had been an independent counsel, then I think the deck would get a different cut.

  31. PraedorAtrebates says:

    But impeachment is off the table. Game, set, match. Bush wins because of PELOSI and ONLY because of PELOSI.

  32. FrankProbst says:

    If the HJC had any brains, they’d just impeach Libby. That should get them access to everything.

  33. AlbertFall says:

    We need more AND BETTER Dems.

    Per Greenwald–and I think he is right–FISA passed because the Dem leadership was complicit in the crimes.

    We need Dem leadership that will not go along with a criminal gang like the Bush admin

  34. Loo Hoo. says:

    Two OTs-

    Over 12,000 Californians voted on one of the most important questions we have ever asked our community: whether or not the Courage Campaign should re-launch a censure resolution against Senator Dianne Feinstein at the next meeting of the California Democratic Party.

    And here’s the answer:

    95.4 percent (11,524 people) voted YES.
    4.6 percent (556 people) voted NO.

    Please join the North by Northwest Democrats at a reception featuring John Dean discussing his newest book: Broken Government: How Republican Rule Destroyed The Legislative, Executive, and Judicial Branches

    Thursday, July 17
    5:00 to 7:00 p.m.
    Waterloo Ice House
    6th and Lamar

    • marymccurnin says:

      I sent this to DiFi today.

      “I know that you are either protecting yourself or are part of the Bush cabal because a true patriot would NOT have signed the FISA bill. You make me sick. And to think I voted for you for mayor.”

  35. perris says:

    No, I’m not surprised by this, if this turns out to be true. But if IS true, then it marks the second time that Bush will have used his privileges to shield something either terribly embarrassing–or downright illegal.

    he’s invoked his priviledge to sheild himself and his crimes far more then twice, there is meyers and gonzales there are those underlings who at least showed up but invoked priviledge, there is more then one other time

  36. earlofhuntingdon says:

    EP can’t be invoked if it never attached to the communication in the first place. I think Waxman’s response captures this perfectly. The Vice President answered questions put to him by federal officers investigating a possibly criminal leak of information from within the White House. In the end, that investigation was found to have been criminally obstructed by his Chief of Staff. Stop there for a minute.

    Whatever else Cheney’s Chief of Staff did, he disclosed confidential – if no longer classified – information to several reporters. He lied about it, as did others in the White House. Some, like Rove, finally “remembered” to clarify their former lies in front of the grand jury in time to avoid being charged for obstruction, too, by Fitzgerald.

    Cheney may not have been forced to answer those questions, but arguably he could have been. Rarely for him, he concluded that cooperation was the better part of saying, “Go Cheney Yourself”, and “voluntarily” answered, however fully, the questions of federal investigators. His answers, and the President’s, are not matters subject to the exercise of privilege.

    Mukasey tries to assert privilege by claiming that Congress’ request is overbroad and includes material “squarely within” the “presidential communications and deliberative process” exceptions. He throws in the “law enforcement” exception, too. He might contemplate that the Fitzgerald investigation is over and unless the Cheney answers reveal new crimes still subject to prosecution, it’s hard to see how the latter exception applies. As for the former, clearly, he’s gearing up for a long fight.

    That’s how Cheney fights all the time. But Mukasey’s position here might tell Congress there’s something nasty in that record that Cheney wants to keep hidden. He certainly wants to avoid its release before the election. Then again, he wants to shield his entire record from the public permanently. So Congress is not facing a one-off problem about a few documents concerning an isolated matter. This is about their and the public’s access to all of Bush’s records. At a minimum, this fight should inform Congress’ efforts – and the reasonableness of honoring any hold – relating to beefing up the PRA and related laws that make clear that the public owns all presidential records, and that their and the government’s interest in making most of them public is of vital importance. As is making criminal the kind of reckless, wholesale destruction of those records that this administration has engaged in.

    Privilege exists to promote the conduct of competent, open government. It’s not a business card from the Mayor of Chicago intended to keep Nitty and Capone out of jail. It’s purpose is not to hide the failings or criminal conduct of the chief executive or his co-president.

    Congress and the courts would be fully justified in finding that Mukasey’s arguments are derisory and do not support the exercise of privilege. It might be helpful if they did that before the reports Congress wants to look at disappear like millions of White House e-mails and Kennedy’s brain.

    • brendanx says:

      Mukasey(Nelson) also makes a couple other arguments:

      1. That was then and this is now
      2. Congress is yucky and mean

    • puravida says:

      Excellent. Especially this part:

      “Privilege exists to promote the conduct of competent, open government. It’s not a business card from the Mayor of Chicago intended to keep Nitty and Capone out of jail. It’s purpose is not to hide the failings or criminal conduct of the chief executive or his co-president.”

      I would suggest you send this to the Speaker. And the Washingon Post. And the New York Times.

    • brendanx says:

      I like this doublespeak:

      The President may invoke
      executive privilege to preserve the integrity and indeperxlence of criminal investigations and

      Then the crux of his argument: even though the assertion flies in the face of what’s traditionally accepted, it would just be bad for us and we would have to completely stonewall from the start next time:

      Even though the Special Counsel’s investigation and Ihe Libby proscecution are closed
      , the law enforcement component of executive privilege is applicable bere because the
      Committee’s subpoena raises serious separation of powers concerns related to the integrity and
      effectiveness of future law enforcement investigations by the Department of Justice…..there
      would be an unacceptable risk thai such knowledge could adversely impact their willingness
      to cooperate fully and candidly in voluntary interview….

      I am not a lawyer, but it’s really quite obscene.

      • earlofhuntingdon says:

        That “integrity and effectiveness” argument seems like a weak bootstrap. This is Mukasey doing his best Tom Hagen imitation; he may not be Sicilian, but he can act like one when it counts.

  37. perris says:

    the problem with this “invoking executive priviledge” is that from now on and forever, nobody even has has to show up to testify, they just “say they are not comming”

    and whatever power this president claims he does indeed have regardless of any court ruling, even if the supremes sided with congress it would not matter one stitch, the president would simply say;

    “I have all power necessary to guard and protect this nation, that power includes ignoring supreme court rulings’

    there is only one method that will stop this man, that method is impeachment, nothing else matters, no law, no amount of reasoning, no court ruling

    if the president says something it becomes law until congress takes that power from him

    they are parties to these crimes, he can only do this with their bidding, he cannot do it without

    simple, they are guilty of all bush crimes from the day they took their oath

  38. rwcole says:

    Congress meets for two more weeks- and then it’s August recess—then it’s the conventions- then it’s campaign season..

    Anything brought up now is pure politics and pure bullshit. No one intends to follow through on any of it.

    • Hugh says:

      Congress meets for two more weeks- and then it’s August recess—then it’s the conventions- then it’s campaign season..

      Anything brought up now is pure politics and pure bullshit. No one intends to follow through on any of it.

      The Democrats have not followed through on anything for 7 1/2 years. I agree though that the timing with regard to recess, elections, and a new Congress are just so many more nails in the coffin of holding this Administration accountable for anything, anything at all.

    • MarkH says:

      Congress meets for two more weeks- and then it’s August recess—then it’s the conventions- then it’s campaign season..

      Anything brought up now is pure politics and pure bullshit. No one intends to follow through on any of it.

      In any other time I would say you’re absolutely right. But, during the surreal Bush years everything seems possible.

      Usually if someone offers you something you instantly think it’s a gift.
      Not so today, now we wonder what the quid is for this pro.

      Yes, those things will come to pass, but what circuitous route is required?

    • Leen says:

      Only if he gets a blow job outside of his marriage and lies about it under oath. they sure did learn from the Clinton debacle. Never testify under oath never

  39. spoonful says:

    Why does nobody claim that communications about the commission of unlawful acts is beyond the scope of any privilege of confidentiality?

  40. Mary says:

    OK bmaz, here’s my rebuttal *g*

    what the hell was Bush/Cheney doing having to negotiate with Fitz for conditions?

    I don’t think he did, did he? Didn’t Fitzgerald say there were no agreements in place?

    What power would Fitz have had to subpoena them in the first place?

    I don’t think he did subpoena Bush or Cheney – I think they were voluntary statements.

    And how does this overcome all the traditional principles of waiver?
    Because there has never been a setting where Bush had to assert EP to prevent it from being waived vis a vis Cheney’s interview because he never had an adverse party seeking to use any of it. If I understand correctly, Bush and Cheney voluntarily gave interviews to a lawyer who was under Bush’s control and authority – Fitzgerald. Because the lawyer was always under Bush’s control and authority, he didn’t have to assert privilege bc he had and kept ultimate control over the use of the information. Fitzgerald stood in the same shoes as Cheney during the interview with Cheney – both were inferior officers to Bush and subject to his supervision and direction.

    It’s like saying that when an associate talks to a partner, both in representation of the same client, that the client has to assert Atty/Client privilege to the associate before the discussion between assoc and partner. Cheney and Fitzgerald had the same boss and no one, Congress included, removed Bush from ultimate control over Fitzgerald as Spec Counsel. They were aligned together, so Bush didn’t have to claim privilege to preserve it – – only when an adverse or non-aligned party seeks the info does privilege need to preserved.

    I also don’t know about the assertion that Congress cannot investigate crimes That one I didn’t say and I agree Congress can investigate crimes – but that’s not how they’ve phrased any of this and I think that goes in part to WO’s point at 13. And I certainly think Congress can itself decide that it is investigating a crime and has the power to get the info, but they have to be willing to do something to enforce that power. I do think, though, that if you rely on the Nixon case, it speaks to a criminal investigation and Fitzgerald’s role was for a criminal investigation, but Waxman hasn’t asserted that is what he is pursuing.

    I can argue this one the other way too, but I have always viewed the Spec Counsel process as flawed in this kind of regard (Fitzgerald was DOJ’s inhouse counsel and Bush is the true head of DOJ), so I tend to think they have a point. OTOH, even if they didn’t have a point, in the end it will boil down to what does Congress choose to do – bc even if Mukasey is dead wrong, Congress has to call him on it for the result to be any different than if he were dead right.

    • earlofhuntingdon says:

      Bush’s formal authority over the DOJ and its lawyers does not allow him to do many things. Lie to investigators, obstruct justice or fire USA’s in order to do that, or use USA’s to enact political retribution against political opponents among them.

      Fitz was not acting as Bush’s lawyer; he was acting as the government’s, the people’s lawyer. I don’t see how that keeps Bush and Cheney’s communications to Fitz – in this context – within EP.

    • bmaz says:

      I agree with the flaws of the SC process. And Marcy will correct my errors I should think, but it was my understanding that the arrangement was indeed negotiated and in lieu of a subpoena, which could have been requested/issued. What Fits said was that there were no agreements made that the contents/evidence of the interview would not be subsequently released, such as Congress was requesting be done. What Fitz said was to confirm that there was no reason Congress could not, and should not, request the 302s or whatever evidence of the interviews exist. As to waiver bit, I’m sticking with it until proven wrong.

  41. Mary says:

    89 – I have to go so not a complete answer, but one reason he would have said it was up to Congress is exactly because he had a chain of command that prevented him from being able to do anything, so it was up to Congress to either revisit an Independent Counsel statute and get one appointed, or to begin criminal investigations itself and back it all up with impeachment or other penalties needed for compliance.


  42. nomolos says:

    Late to the party so don’t know if this has been covered. But why not just call Fitz and ask him all the questions? He can say exactly what transpired in the Darth Vadar interview can’t he? The chimp cannot claim EP with Fitz.

  43. earlofhuntingdon says:

    Cheney also learned from the Iran-Contra investigation, and the program he defended for five years while in the House, that even a Congress dominated by a large Democratic majority had no stomach to hold the President publicly accountable via the impeachment process.

    Newt Gingrich, who thrived on overturning restrained precedent in favor of Shermanesque slash-and-burn policies, threw out that hesitancy in order to attack a Democratic President over his sex life. Like Cheney’s attack on Jim Wright, and Karl Rove in everything, he didnt’ care where he got the club if it could be used to bash his political opponent.

  44. rwcole says:

    McSwain goes to the NAACP and sells himself on the basis of private school vouchers..

    Room was empty- no applause- fart in church kinda thing.

  45. victoria2dc says:

    Question Marcy and all:

    I assume you’ve all been watching the Kucinich attempt to get an impeachment hearing. I am so angry that I don’t know what to do next. I’m posting this comment because I think that the Speaker of the US House has gone beyond… beyond reasonable, moral, ethical and possibly legal running things from the sidelines.

    Your thoughts? Isn’t this a conflict of interest, knowing what we know about the Speaker’s involvement in torture, spying and the other crimes of the administration?

    From this morning’s AP story:

    Rep. Dennis Kucinich’s single impeachment article will get a committee hearing — but not on removing President Bush from office.

    It’s very clear that she (Nancy) is doing the directing from the sidelines!

    This time, the panel will open hearings. But House Democratic leaders emphatically said the proceedings will not be about Bush’s impeachment, a first step in the Constitution’s process of a removing a president from office.

    Who are these Democratic leaders and what are they doing? How do you get this information when there are no staff members in the Speaker’s office to take calls from ordinary people like Americans?

    Instead, the panel will conduct an election-year review — possibly televised — of anything Democrats consider to be Bush’s abuse of power. Kucinich, D-Ohio, is likely to testify. But so will several scholars and administration critics, Democrats said.

    Who wrote this?? An “election year review”… unbelievable! Sounds like the Republicans wrote it. This is the end of Nancy Pelosi for me.

    The hearing is a modest gesture by House Democratic leaders to members like Kucinich who insist that Bush’s reasons for going to war meet the standard for impeachment. Kucinich had said that if his impeachment article is tabled he would just propose another one.

    The above statement is beyond the way outer limits of the universe – a “modest gesture by House Democratic leaders” to accommodate those of us who require all amendments of the US Constitution and the rule of law so we can live daily life in America. Just who does this Speaker speak for? She certainly doesn’t speak for me.

    Isn’t she saying… have a hearing but don’t investigate because it’s too close to me and I have to protect myself. I have a conflict of interest and I’m part of the criminal cabal. That is unbelievable! That is not acceptable.

    Marcy, isn’t the ONLY way to get beyond these executive privilege claims to initiate an impeachment hearing? Could that be the reason that she is sending messages to Conyers not to go there?

    So what do we do if we want law and order? What do we do if we want accountability?

    A final quote:

    Democratic aides said the hearing could take place as soon as next week

    What Democratic aides? From whose office? From the Pelosi team? We need to know who’s speaking here because if we are ever going to take action as a group, then we have a very short window of opportunity to get organized.

    Your thoughts?

  46. JamesJoyce says:

    Public Opinion has power and clout

    White House Comment Line


    Call and express you complete disgust with these fascists who ignore the rule of law for corporate gain.

    1202 225-5126

    Call Conyer’s office and ask if mold is going to grow on Kucinich’s Articles of Impeachment referred to his committee by vote of the House, for the third time!!! Nine Republicans crossed over yesterday and voted yes! Let them hear it till they are sick of it!

  47. rwcole says:

    The time for impeachment hearings is long past. We have august break followed by conventions followed by electioneering.

    There isn’t time or attention.

    The chances of removing the asshole are ZERO- NADA

    The potential for political backlash is huge- might be the ONLY way to save the goopers this election…

  48. RoyalOak says:

    I feel sick

    Aside from a revolution, how can the citizens force congress to react properly?
    I think I need to go away from politics for a while. I am too upset and disgusted and feeling total despair for this country. My college aged sons want to move to another country. They are constantly angry over the way the country is being run(over).

    • JamesJoyce says:

      “….find the cost of freedom buried in the ground. Mother earth will swallow you lay your body down.” CSN&Y Four Way Street. We are indeed at a crossroad. I think you stated the answer, recalling the reluctance of the “Patriot” to do what was required, in the movie “The Patriot!”

  49. rwcole says:

    Congress needs to find an expeditious way to deal with these executive privilege claims or they will have no oversight authority.

    • selise says:

      Congress needs to find an expeditious way to deal with these executive privilege claims or they will have no oversight authority.

      is that the goal? no congressional oversight – but with a D president?

    • Hugh says:

      Congress needs to find an expeditious way to deal with these executive privilege claims or they will have no oversight authority.

      Most members of Congress don’t want oversight. There are only a few like Henry Waxman who do but he is one person and it is one committee, and his main interest so far as been to shed light rather than enact legislation or hold the guilty accountable.

  50. rwcole says:

    How can congress go to court and get a quick ruling on these executive privelege claims? Is there a way?

  51. MartyDidier says:

    If anyone hasn’t noticed, there is something in the background that is going on that very few know about. I’m not ONLY talking about Waxman who is doing a marvelous job. This is one reason why Bush is freaking out and needing to expose himself with another “Executive Privilege”. By exposing himself, I mean he has to know that everyone is noticing what he is doing as it’s not like before. If we read the posts, it’s easy to see that most everyone is very upset with what (and is) happened. Also their reasons follow well with what the detail is, saying they realize what he and the Administration is involved in. But there is more to the story that needs to be told.

    What’s going on behind doors is a counter to end the insanity. When they get close and all opportunities to stop it, Bush freaks out and has to pull an Executive Privilege. However Bush and his group have other plans and this is another “White House Coup”. This is similar to the one that took place in 1933 that failed. Since then, the Coup group has been working very hard at perfecting their approach to make sure this latest attempt won’t fail.

    How I know is because I was in a family for more than 26 years who’s involved in the Coup. They joined in the late 70’s. Their position in the Coup is as one of many who are in support of functions that pay for the Operations that support the Coup. This is beyond huge and people are going to find it difficult to believe but unfortunately it’s true. Don’t fret as this is going to break sooner or later and when it does, everyone will understand who is involved. Involvement in a Coup is High Treason that demands consequences. Be assured that in 1933 they didn’t get all of them but this time they will get most of them!

    Marty Didier
    Northbrook, Il

  52. readerOfTeaLeaves says:

    Man, oh, man… I check in at lunchtime and the world is spinning faster than I’d realized. Boy, howdy……

    Waxman’s: ‘no, asshole, you don’t get Exec Privilege for talking voluntarily to the FBI about your criminal actions’ is just wonderful.

    Jesus, I may print it out and put it in my car keys holder just to brighten my day a bit when I run errands. A small, but meaningful reminder that not everyone has gone completely nuts.

    EW, thanks again so much for what you do here.

  53. RAMA says:

    The Bushies keep doing this because they know there is absolutely no way they will be held to account by anyone for anything. Even when testifying under oath, all they say is they don’t remember, and the Dems say, “Really? Oh, okay.”

    We can expect a sternly worded letter, and maybe even a sternly worded statement from the committee. We may even get a Q&A appearance on one blog or another by the committee chair, who will vigorously and angrily attack the regime’s stonwalling.

    And that will be it. There is, simply, no oversight at all of the executive branch because everyone knows there will never be any consequences, no matter how egregious, contemptuous, and illegal the behavior.

  54. Mary says:

    118 – I think some of the genesis has been lost. I put things up in response to the comment that Executive Privilege was waived bc it was not raised when Cheney and Bush were first interviewed by Fitzgerald.

    I said it did not have to be raised then, because Fitzgerald was not interviewing them in any adverse capacity – he was the Executive Branch’s laywer – and in-house DOJ lawyer. So when the head of the Executive Branch discusses occurences with an inferior officer, whose investigation the Executive ultimately controls (Fitzgerald is on the record in pleadings in the Libby case saying his investigation and appointment was subject to the control and supervision of the President), I simply don’t think the Executive has to refuse to talk to his inferior officer or else claim that Executive Privilege is waived with respect to the President’s discussion with that inferior officer about matters.

    When do you have to raise or waive privilege is really the question I was responding to – so I don’t think I said that Bush’s authority over DOJ allows him to lie to investigators, obstruct justice or fire USAs (although on the firing front, the main reason Fitzgerald was allowed to proceed in the Libby case without going through an advice/consent appointment was bc he argued, himself, that Bush or a non-recused AG or the acting AG for his matter could fire him at will and change his mandate and his authority to proceed at will).

    I don’t see how that keeps Bush and Cheney’s communications to Fitz – in this context – within EP.

    It’s not Bush and Cheney’s communications to Fitzgerald, per se, where the claim EP is made if I understand correctly (and I may not). Instead what they are saying is that the things Cheney and Bush talked to Fitzgerald about (in his capacity as an inferior officer, subject to Bush’s supervision) were discussions they had between each other and those discussions are EP and their nature as EP was not destroyed or waived merely bc they talked to Fitzgerald.

    So let me try to put this in an attorney-client privilege setting where it might be more understandable. Let’s say Cheney was Bush’s lawyer (not just advisor) and he and Bush had discussions about the NIE. He and Bush (in Bush’s capacity as head of the Executive Branch) have privilege for those discussions (let’s assume)

    Later, Bush has a different lawyer working for him investigating the Plame leak (Fitzgerald) and Fitzgerald has discussions with both Bush and Cheney. Later, Congress says “hey, we want that info” and Bush claims Attorney/client privilege and Congress says, well, what Fitzgerald and Cheney talked about can’t be privileged bc neither Bush nor Cheney raised Attorney/Client privilege before Cheney talked to Fitzerald.

    I’d say – so what? Cheney/Bush didn’t have to raise privilege for Cheney to have a discussion with Bush’s inferior officer (who Bush can keep from proceeding any time, bc Congress AGREED to that kind of approach rather than requiring an independent counsel).

    There was no adversity, all players were on the same team at that point. It’s only now that a different team is trying to get access.

    OTOH, I do think (flipping my cap) that once Fitzgerald made his filings in Libby, where he filed affidavits as to some of the content of what Bush and Cheney said about the authorizations on the NIE, you start to appear to have EP waived there – – it seems to me that if Fitzgerald made those filings without authorization from Bush, that would have been the time for Bush to come in and argue EP (and maybe he did – it might have been done in a sealed v. sealed context) and so I think that, while the time of the interview probably was not a time when privilege had to be raised or waived, once the interview info was used in court, THAT might have been a time for the privilege to be deemed waived if not raised (for subsequent judicial proceedings at least)

    So I think the Wilsons ought to think about going after that info hard themselves with a waiver argument.

    But even with that failure to raise, I think you are now talking about a completely different use of the info – not in a criminal proceeding and not in a courtroom. So there could well be the argument that a waiver for purposes of a criminal proceeding is not the same as a full out waiver for a Congressional fishing expedition.

    And given that Congress sux, I’d much rather have the loyal Bushie’s argument on that front, bc it doesn’t really matter how badly you make it.

    Heck, I’ve said this over and over, but the leak of the NIE was a crime – no matter what declassification argument anyone wants to make, it still violated the National Security Act prohibitions against covertly planting info with domestic sources for political propaganda and Congress could absolutely DEMAND those interviews as evidentiary as to that crime. They won’t do it, but with what is in the Libby record, you have a prima facie case of violation of the NSAct.

    But it’s all pretty much for naught, bc Congress isn’t going to do anything. I’ve come full circle to my original belief, back when FItzgerald was appointed, that it was a disaster for Congress to refuse to take up Independent Counsel legislation again and appoint and Independent Counsel. I was really hopeful over the stories of Fitzgerald as tough and independent, etc. but remember that from the day he was appointed he was confirming that there would be no report to Congress – that had already been “negotiated” by the Exec and Ashcroft and Comey. Congress should have acted then – talk about waiver. They were told straight up that they would be cut out and they sat back and acquiesced for years. Schumer in particular was the salesman for how things went forward (way back then, even Joe Lieberman was calling for an Independent Counsel)

    In any event, in the end Congress can do what it wants, if it will. What it wants is to bang a shoe on the table so that’s what we get.

  55. Mary says:

    133 – I think where you got that bmaz is that during the trial when the claim was made to try to align various entities like CIA with the Special Prosecutor (we won’t go into the significanc of the court saying the Spec Pros was aligned in interest with them) Fitzgerald made a point of asking to not be aligned and for the purposes of all that was going on there said that yes, there had been lots of information given to his office but that it had been in response to duly served subpeonas – not voluntary handovers.

    OTOH, Bush and Cheney were always voluntary interviews if I remember correctly.

    • bmaz says:

      Marcy too. I am not saying there was a subpoena. What I am saying is that the reason there was no talk of a subpoena is that Fitz let them know he required evidentiary testimony from Bush and Cheney. They agreed, through counsel, to this format. Even granting that it would not be GJ, but rather an informal interview, there are still certain parameters that have to be set, including, significantly, whether there would be a court reporter transcribing and whether it would be conducted under oath. Coming to the agreement on all that is what I am terming the “negotiation”. All that was done without any definitive invocation of EP; if that was not the case, Fitz could not have made his “no agreements on use” statement. That is what I am saying, and I am sticking with it. But I have been nailed for heinous incompetency once today already, so maybe I will be again.

  56. Neil says:

    Thank you for your analysis, all. This thread is a great discussion of the issues, top to bottom.

  57. earlofhuntingdon says:

    I don’t agree with the characterization that Bush and Cheney were talking to a lawyer under their control and that, therefore, their communications with that lawyer were inherently non-adversarial. And that as a consequence, any privilege that attached to that information was preserved.

    I think the opposite is true. In the context of Fitz’s then role, those communications were inherently adversarial. As a consequence, any privilege that might have attached to the information they disclosed was lost.

    Bush was not seeking advice from Fitz. He and Cheney were disclosing to a federal prosecutor information that could incriminate them or those who worked for them. That they chose to talk with Fitz without being compelled to do so is more akin to a suspect knowingly choosing to talk to the police without a lawyer.

    That suspect might be a mayor or governor with the power to supervise or fire the police they talked to, but it wouldn’t change the fact that their testimony could be used against them or their direct reports. And that suspect couldn’t do even that legally if it were an attempt to obstruct justice.

  58. readerOfTeaLeaves says:

    Nothing shouts “GUILTY (and scared shitless)!!” like a claim of EP.

    Hell, I might even make an extra political contribution to a Blue Progressive today just to mark the occasion.