Tom Davis Supports Waxman’s Demand for Cheney’s Interview Materials

Retiring GOP Congressman Tom Davis must have accepted that we’ll soon have a Democrat in the White House. He has joined Henry Waxman in declaring Bush’s (Mukasey’s, really) invocation of executive privilege with regards to the Cheney interview notes in the CIA Leak Case to be improper.

 On a bipartisan basis, the Committee finds that the President’s assertion of executive privilege over the report of the Vice President’s interview was legally unprecedented and an inappropriate use of executive privilege. The assertion of executive privilege prevents the Committee from having access to a complete set of records and thus results in the Committee’s inability to assess fully the actions of the Vice President.

Mind you, I don’t know what effect this report will have. As we’ve seen with the US Attorney subpoenas, the White House can stall anything until the end of the Administration (and until Bush pre-emptively pardons Cheney and Libby for outing a CIA spy). At which point–given the way the polls are headed–Obama’s new AG could turn over the Cheney interview materials. 

I’m most curious about Davis’ cooperation on this, but not Waxman’s demand that DOJ unredact the reports the Committee already has (these redactions include references to both Bush and Cheney), because I believe Davis was party to the Administration’s second firewall on the CIA Leak Case–the Cheney claim that he could (and presumably did) insta-declassify Plame’s identity all by himself.

When the Oversight Committee had a hearing on CIA Leak Case, remember, Davis went to some length to try to get Bill Leonard to state that both the President and the Vice President had authority to declassify at will. 

And, after the country’s head of Information Security, Bill Leonard, asserted at the Waxman hearing that the President has absolute authority to declassify things, Congressman Tom Davis tried to sneak such authority for the Vice President into the Congressional Record:

Davis: Mr. Leonard, let me ask. Does the President or the Vice President have the authority to declassify on the spot?

Leonard: As I mentioned earlier, Mr. Davis, the President’s authority in this area is absolute, pursuant to the Constitution, …

Davis: So they can do it on the spot. Can they declassify for limited purposes?

Leonard: Absolute is absolute.

Everything we’ve learned since this hearing suggests that the Administration made an after the fact attempt to shield Bush from responsibility of insta-declassifying Plame’s identity before Cheney ordered Libby to leak it to Judy Miller. By claiming Cheney had the authority to insta-declassify Plame’s identity himself, they have invented a scenario through which Plame’s identity was leaked "legally" but without Bush’s knowledge. Knowing that–and seeing Davis’ sly attempt to extend Leonard’s comments in this hearing–has always made me think that Davis was party to the White House plan.

In other words, what Davis appears to be doing is re-establishing some limits to executive privilege just in time for an Obama administration, and, at the same time, attempting to help the Administration shore up the Cheney firewall to hide Bush’s involvement in the outing of a CIA spy.

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  1. scribe says:

    Yup. If you read Yoo’s late 90s law review articles on the Unitary Executive, it’s patent that the powers of the Unitary Executive only work and only can be allowed to work as intended, when the Executive is in Republican hands.

    So, the chicanery begins. Here’s hoping the House leadership will deal a prompt and vigorous smackdown to the Rethugs being their usual boisterous opposition selves, come Obama time.

    That, or have more Repugs go jogging with Mean Jean Schmidt.

  2. scribe says:

    Oh, yeah. Davis is leaving Congress, so he’s got nothing to lose by mavericking “against” Deadeye and Bushie.

  3. Mary says:

    Yep – he’s gamed it pretty well.

    No chance at this late date that any actual action will be taken, yet the Republicans can, going into the next administration, talking point away that their ranking member joined in the request when there was a Republican President and nip away at Democratic heels.

    And that’s just fine with me.

    I’m so pissed off at the way the Democrats have handled everything for the last 8 years and so underwhelmed by Obama’s shift to his embrace of amnesty and his careful phraseology on GITMO about wanting to shut it down, but not to give terrorists rights (taking his own big ol equity hunk of failed institutions and CEO golden parachutes) etc etc that if the only way to get Executive power reined in is to have pissed of Republicans doing it – fine by me.

    The problem, of course, will be that the Republicans will accomplish their take downs by and large out of court, getting the “same as” practical effect and yet leaving the door open for the next Republican President to have innocent people kidnapped, disappeared, tortured and killed, to censor and propagandize the American people, to outsource crimes hand in hand with other activities, as if Executive crime were a legitimate government function, to use the DOJ as a wing of torture and cruelty and to cover up crimes, etc.

    So ok – maybe not so fine after all. It’s the game the Democrats have written, with their own rules. They have the perpetual place of hand wringing and pretense at desire for better governance, while behind the pretense is a desire to just not have to take a stand ever, on anything. Never have to tell the truth, never have to make any scarey Republicans tell the truth.

    Just fuss and fluster around, saying “if we are in power, we won’t be as criminal” EPU’s post on the lizards really serves as endpoint for every political equation that involves Democrats and Republicans.

  4. bmaz says:

    Assuming Obama wins, immediately after the election, he should very discreetly, but forcefully, communicate to Bush that his administration will consider any and all pardons that are found to conceal or abrogate clear criminal activity to be newly committed crimes of obstruction of justice that will be prosecuted. Just as a friendly advisory. Bush, as President, may have the unfettered power of pardon; but if it is intentionallyused for a demonstrably improper purpose, there is no reason that cannot be an overt act toward an independent crime. That ought to give Boosh a little pause.

    • Minnesotachuck says:

      Perhaps Obama could intimate that otherwise the US will seriously consider any requests for extradition by responsible foreign governments should they seek to pursue senior Bush-Cheney regime officials with charges for war crimes?

    • AlbertFall says:

      Love the way you are thinking, esp. vis a vis Plame, wiretapping, Cheney energy group, vote suppression, USA replacement, Don Siegelman….man, just off the top of my head, the crimes mount up…..

      Assuming an Obama win, I would like to see Rove and all his of his minions hauled up for private, under oath closed door testimoney before Congressional staff, and then develop the air tight cases that can be developed and haul them in front of the lights.

      I know the Reps are going to howl, whine and rev up their base with gripes about “political payback” if there is investigation of real crimes by Republicans, but it needs to be done.

      • bmaz says:

        Criminals always howl when they are being taken down. That doesn’t mean you don’t do it. They are entitled to effective and zealous representation and due process; society is then entitled to accountability for any offenses found as a result.

        Republicans have, for decades, had the fortitude and determination to step on the throat of their opponent when they have them down; Democrats allow themselves to be intimidated and stepped on when they have their opponent down. Every time the Democrats come back into some power to clean up the latest GOP mess, they are in such a hurry to patch things up and bring “unity” and govern, that they fail to address the root cause of the rot that created the mess, thus guaranteeing that it regenerates itself quickly. Every fucking time we make this mistake. You can literally see it happening in front of your eyes as we speak. For once, I would love to see Obama use some political capital and time to kill the beast. Yes, it will delay doing other things and cause a ruckus. It will also clear the ground for actually accomplishing something good and lasting.

        • BayStateLibrul says:

          Excellent analysis.
          I’m still hoping that Fitzy speaks his mind one of this days.
          We got our arses stung by the Rays yesterday PM.
          You think we can flutter to victory with the Wake?

          • LabDancer says:

            This is when Patrick Fitzgerald will ’speak his mind’: Under oath, to a standing Congressional committee with oversight authority and enforceable subpoena power, with an Obama DOJ OLC opinion in front of him asserting that the GWB administration’s assertion of a 10 years-or-long hold on release of presidential ‘papers’ has no application to papers and other information held outside the White House, either:

            [a] within 1 month of the 111th Congress going into session, if it is to happen before The Chairman’s committee on Oversight; or

            [b] within 3 months if The Chairman agrees to defer to the House Judiciary Committee and Senator Leahy decides to set aside his search of answers on the anthrax investigation; or

            [c] within 1 year if The Chairman agrees to defer to the House Judiciary Committee and Senator Leahy does not so decide; or

            [d] in June through September of 2010 if Congress passes and President Obama signs into a law a Special Joint Committee on Truth and Reconciliation.

            If it’s any option other than [a], I defer to the future first holder of the newly-established Niccolo Machiavelli Chair at Georgetown, Richard Bruce Cheney: “Everything leaks.”

            [2]

        • Leen says:

          It really gets under my skin when I hear Obama, other Dems and of course almost all of the Republicans repeat “turn the page, move on, that was then and this is now, we need to move forward as a nation”. This is absurd how in the hell can we move forward until Bush, Cheney, Rove, Ashcroft, Feith are held accountable for their crimes?

          During an interview on Talk of the Nation the journalist Peter Bergen said that during an interview with Bin Laden OBL said “that he hoped to witness the U.S. become a shadow of it’s former self” OBL seems to be getting his wish.

          While some of the Dems have made efforts to hold a few of these thugs accountable and the Republicans have done everything in their power to interfere..the efforts seem pitiful compared to the crimes.

    • behindthefall says:

      I wonder, though, what those minions may have on Bush himself. Perhaps there are other kinds of crimes that we have not permitted ourselves to even think about that have been committed. “Pardon us, boss, or certain facts get released.”

  5. ceo1 says:

    It will be interesting to see where Davis winds up (who knows, spending time with the family). He was one hell of a water carrier.

      • Redshift says:

        Yeah, but just for now. I really don’t think Davis has given up his ambitions of higher office. I suspect he’ll challenge Webb in four years, and decided “retired congressman” was a better platform to do it than “defeated congressman.”

        Also, Davis is a mean sonofabitch, but he is an actual moderate Republican, at least by Virginia standards. He can probably see that the VA GOP is being taken down the tubes by the extremists (the ones who nominated an unpopular former governor for the Senate race instead of him), and he’s probably establishing his anti-Bush credentials for the time when he can pick up the pieces.

        • LabDancer says:

          He’s a “moderate Republican”?

          I’m not sure what that means, and would be pleased to be enlightened.

          From all I’ve read, Tom Davis is the sort of Republican more comfortable going through a day of meetings with Cheney, Mehlman, Black, McConnell, Hayden, Perle, Graham, Brokaw and Broder, than a day of meetings with Robertson, Dobson, Hagee, Stephen Jones, Ralph Reed, Nordquist, Beck, Hannity and Krauthammer.

          For myself, I’d feel more comfortable with someone who favored the latter; they’re easier to watch.

  6. FrankProbst says:

    Assuming Obama wins, immediately after the election, he should very discreetly, but forcefully, communicate to Bush that his administration will consider any and all pardons that are found to conceal or abrogate clear criminal activity to be newly committed crimes of obstruction of justice that will be prosecuted.

    I don’t think this will be necessary. I think it’s pretty clear that Bush only cares about Bush. He’s going to be awfully pissy over the fact that his Presidency was such an enormous failure, and he’s going to blame it on just about everyone but himself. So I don’t think there are going to be many pardons. Add to that the fact that the only stonewall that all of his cronies will have left is invoking the right to remain silent, and you’ve given him all the motivation he needs to be VERY choosy with his pardon pen.

    • dolso says:

      I would be very surprised if Bush does not pardon Cheney, Libby, Rove, Gonzales and all of his other cronies that were at the center of his regime. They just have too much exposure and any legal trouble that they have as a result of their work during the Bush administration will be something that Bush will want to avoid, if at all possible.

  7. JohnJ says:

    I think it’s pretty clear that Bush only cares about Bush. He’s going to be awfully pissy over the fact that his Presidency was such an enormous failure, and he’s going to blame it on just about everyone but himself. So I don’t think there are going to be many pardons.

    I know the Reps are going to howl, whine and rev up their base with gripes about “political payback” if there is investigation of real crimes by Republicans,

    I hope both these opinions are correct, but I am starting to think we are consulting with the wrong experts on how to deal with this group…we don’t need legal, political, or Constitutional experts…we need to consult with Child Psychologists, or maybe Super Nannies. I see all these tactics used by the 13yo I live with.

  8. perris says:

    Retiring GOP Congressman Tom Davis must have accepted that we’ll soon have a Democrat in the White House. He has joined Henry Waxman in declaring Bush’s (Mukasey’s, really) invocation of executive privilege with regards to the Cheney interview notes in the CIA Leak Case to be improper.

    thanx to that read I just realized something marcy, and thanx to you we have a clear course of action;

    if barak becomes the president elect, WE CAN GET AS MANY LAWS PASSED AS WE LIKE regarding executive priviledge and the constraints of those clames

    • LabDancer says:

      Whereupon a Blue Dog Dem [GOOPer in sheep’s clothing] will come into the White House and start backfilling all the excavation.

  9. R.H. Green says:

    Posting this excellent idea here is preaching to the choir. Why not approach the Obama camp directly. Better to wait till after the votes are counted, and the electoral college disputes are settled, then write the transition team. Hell, I’d love to see you on that DOJ team. And Mary too.

    One problem with Bush witholding pardons is that many are probably counting on them, and may get into a nasty mood if they got the idea they’re just more cannon fodder.

  10. freepatriot says:

    to bmaz @ 4

    Obama ought to tell bush that his ”instadeclassification” is gonna BITE HIM IN THE ASS, BIGTIME

    a lot of evidence is gonna be in the public domain on January 21, 2009

    executive orders are gonna be rescinded

    and the freedom of information act is gonna get a LOT of exercise

    get ready for the shit storm, george

    once you lose control of the levers of power, your sorry little ass is on the hook for crimes against humanity

    karma knows where you live …

    • quake says:

      a lot of evidence is gonna be in the public domain on January 21, 2009

      A lot of evidence is going to be in the shredder on January 20, 2009, unless the new administration’s transition team takes decisive measures to head off the mass destruction of evidence.

  11. Leen says:

    Davis complicit in the outing of Valerie Plame Wilson by giving Bush and Cheney cover. Pathetic. Will the public ever have access to any part of the damage done to National Security as a result of the outing of Plame/Wilson?

    Bush, Cheney, Libby, Rove etc sure have done so much for the integrity of our nation. Wonder if the CIA recruitment numbers went down after the outing of Plame?

  12. freepatriot says:

    now is the time to discuss our joining the rest of the civilized world by joining the International Criminal Court

    and if george bush should pardon anybody, it would become our duty to help the ICC try and convict any war criminal who has immunity from US Laws

    pardon your ass off george, and practice your french …

  13. Mary says:

    4 – He should, but he won’t. IMO.
    13 – Having seen some of what gets said by people like McCarthy and Comey who were reportedly people he was close with, and watching his own torture case, I’m not watching for or expecting anything much there – unless maybe he decides to devote any resources left from ACORN prosecution to take up McCarthy’s quest and investigate the deep mysteries of Who Wrote Obama’s Books.

    Davis is just looking to make it tougher for the next admin bc he knows it will be Dem and to give Republicans that “independence” talking poing (hey, we demanded release of info from Bush [after it was way to late to get it or do anything]aren’t we independent? not like the Dems who will e spending the next 4 years blocking efforts to get on Obama’s terrorist ties])

    They have lined up the petri dishes, each teeming with its own virulent strain, for the hand off. Recession; unemployment; stirred up racism; and anti-education populace; a military strained to the break point and fluffed out with felons, gang members and white supremacists; Afghanistan in turmoil; Pakistan faltering (but with a really big push on, after years of Bush sitting back, to actually go after Bin Laden and Zawahiri to have an accomplishment to claim); GITMO cases with courts ordering release and findings that the detained were never anything but human trafficking victims used for human experimentation, but the abuse victims now teetering on being ordered released into US; actual tribunals still in the works for the evil and guilty and tortured too; a DOJ intent on targeting political enemies and continuing to cover up Executive crime and collegial crime and seeded with so many who are so worthless that there has never, for the last 7 years of abuse of Executive power, never been even a whimper of condemnation or castigation from any of the lawyers working for DOJ on torture and child disappearances or any of it.

    And then there’s Iraq.

    The “new” President may end up walking into a war that is illegal from the first day in office.

    http://www.washingtonpost.com/…..46_pf.html

    A UN extension is problematic, and there is almost no chance from a timing standpoint alone of a SOFA being in place, and with no SOFA and no extension, there is no thread on which to claim any legitimacy for the US troop presence.

    Notice how Obama and McCain haven’t even been mentioning the SOFA issues, or why it is that Iraq, which sees solider after soldier after contractor after contractor kill toddlers and old men and nursing mothers and never, ever, ever, get more than a hearty tsk tsk – seems so adamant about wanting to have jurisdiction to pursue crimes committed in its territory?

    Good to know the political conversation has moved on to important things – like Sara Palin’s updos and Bill Ayers.

  14. Leen says:

    “he should but he won’t” Should we hope for change? Or is Obama all talk no walk. I was not on Obama’s bus right away based on his fence sitting ways. But he keeps telling us to have “hope”. Time will tell

  15. readerOfTeaLeaves says:

    Having made precisely this error several times (’don’t want to rub their noses in it, they seem to be coming around and we don’t have time to waste’) — only to realize that like Gollum they can be just pathetic when they don’t have votes/power, but turn instantly into ruthless, destructive, insolent swine when they have votes/power — you are EXACTLY right.

    Given, I’m talking smallish potatoes on a smaller scale; not talking federal regs, etc.
    But boy, I have seen this phenomenon one too many times, and at this point I think the old ‘noblesse oblige’ is a formula for disaster.

    I’d been using the wrong metaphor.
    I’d thought that, like children and teens, they’d ‘grow out of it’.
    Maybe some do, but not enough of them.

    Infection really is a more apt, more useful analogy.
    Dive down and get every single bit of it. Then treat it very carefully for an extended period.
    Then keep checking to make sure it has not returned.

    None of what we’ve seen in BushCheney could have occurred without Iran-Contra, and if the Beltway Dems are too compromised to act on problems in which they were complicit, then there’s an urgent need for More Better Dem/Progressives.

    We’ve made the mistake of letting people go about their business (’as usual’) one too many times.

    I rather suspect, however, that one huge factor driving the McSame meltdown is the terror and fear of people who’ve committed crimes that they’ll be investigated and brought to justice. Hence, the intense over-reaction and panic on their part.

  16. JohnLopresti says:

    I have thought for a few years one of TDavis’ unseemly legacies from his private sector work in IT entities may prove to have been involvements in the Quantico loop scandal and the Geeks on Call mentioned in the Scott Bloch deposition. As for the wails of illicitude Republicanesque, one of the problems Democrats will face if in a new strong majority will be reining in their own intraparty minions in an attempt to hold allies to a standard less venal than the constitution as a piece of paper crowd in the Republican party. In other words, Democratic leadership is looking for a way to narrow the range of possible common denominators, a difficult task, though the leadership and vision in the Democratic party seems to be morphing to a new paradigm, given clearly business as Republican usual would lead to more embroglios of the sort the exiting folks will be enjoying over chuckles as they count their personal savings and arduously won tax shelters. That whole business of erased emails, and treat as if classified, and the executive privilege pervasion into hiding years of communications which historians otherwise would access, all really are zones congress is likely to restrengthen, and Davis’ IT heritage and positions abetting some of the most egregious evasions will be there at the periphery if congress wants to examine the doings of one of its former leading citizens. So, I think he is bartering back to HenryWaxman a favor of support in the hope of lessening the possible inclination of some new Democratic party leaders to set a few bluedogs sniffing on the IT scandals, and the reconstitution of WH IT which is likely in the offing soon.

    • readerOfTeaLeaves says:

      What?!!

      I’d no clue about Davis’s background, nor do I generally care.
      Exposing my own ignorance (and not for the first time!) I recall an amiable, pleasant man of goodwill from some Fairfax, VA Econ Development outfit (or maybe Chamber of Commerce…) talking some years back about how when the economy went stale in the late 1970s, and Carter offered early retirement to civil servants, many with ‘tech skills’ were already in the region, hence a ‘built in high tech workforce’.

      He was almost busting his buttons with pride about the magnificent economy back in Fairfax, VA; and several homebuilders were almost embarrassing themselves with their drooling over how they could get into that market.

      It never occurred to me that Davis had any sort of tech background, but your point certainly underscores part of why JohnJ @32 proposes such a good idea.

      FWIW, whether more transparency is to ‘out’ the Rovian plants, or simply make people a bit more accountable is all a good argument. I wonder whether we aren’t entering an era where government as we’ve known it simply isn’t going to cut it — electeds will have too much pressure from citizens to make sure there are better ‘feedback loops’. JohnJ’s suggestion naturally falls under that umbrella, or so it seems to me.

      JohnLopresti… my good heavens.
      What insights… my, oh my.
      My head will be exploding for at least another 30 minutes from this little item.

      • readerOfTeaLeaves says:

        Sorry, did not make clear my question — was Davis part of that local Fairfax region’s burgeoning tech boom? The sort of thing that made it seem quite natural for companies like Network Solutions to locate in VA? Are those the types of jobs/culture that Davis represents…?

    • Minnesotachuck says:

      Democratic leadership is looking for a way to narrow the range of possible common denominators, a difficult task, though the leadership and vision in the Democratic party seems to be morphing to a new paradigm, given clearly business as Republican usual would lead to more embroglios of the sort the exiting folks will be enjoying over chuckles as they count their personal savings and arduously won tax shelters.

      Reforming “business as usual” in an institution such as Congress is no trivial task. A few months back I read Naked Emperors: The Failure of the Republican Revolution, by Scott Faulkner, which described how the GOP’s allegedly good intentions fell apart upon gaining control of the House for the first time in 40 years in 1994. Gingrich and a handful of other Republican Reps who’d been in the House for a while had set in motion plans to make some changes that would have genuinely been positive. Theretofore the day-to-day, routine management of such activities such as printing, assigning and decorating office space, moving furniture, operating the phone system, postal operations, etc., had been handled by the House Administration Committee. According to the author (about whom I’ll say more shortly), as long as anyone could remember the handling of these tasks had not only been inefficient but also infused with partisan bias. The majority members got much better service than the minority, although the committee chair didn’t hesitate use his control over the staff to reward or punish members of either party depending on how they voted on legislation of interest to him. Gingrich (to his credit if the author’s assertions are accurate) wanted to start running these logistical activities on a professional, businesslike, and non-partisan basis, and the incoming Speaker also pushed through the change of the committee’s name and charter to “Oversight” instead of “Administration.” Scott Faulkner was a former Republican House staffer who subsequently had built a consulting reputation in “Change Managememt”, and in view of the fact that he continued to have strong ties to the Party he was hired as the first Manager of House Administration.

      Faulkner’s book traces the trajectory from initial optimism to dashed hopes. In short two things did in the project. First, the incoming GOP chair of the Administration/Oversight committee, who had spent years waiting for his chance as the ranking minority member, wasn’t about to let his power be kicked to the curb now that he was finally committee chair. And secondly, Gingrich didn’t support Faulkner at critical showdowns with the chairman. (Sorry, I don’t remember his name.) Part of the reason for this was that he needed to conserve his ammunition for what he regarded as more important fights. At the same time, however, the Speaker had a zipper problem that the committee chairman learned about, and he essentially blackmailed him.

      That, at least, is the gist of the story as told by Faulkner. However, the author comes across in the book as a person of overweening self-confidence, and as one who very likely is viewing the events through a lens with a formidable coefficient of refraction. I hope someday to learn more about these events from another perspective.

  17. JohnJ says:

    We haven’t addressed the Regent “U” moles planted all over the government, waiting for the Dem admin to come in to activate.

    I wouldn’t be even slightly surprised to see them shut down virtually all of the government agencies in order to “prove” the incompetence of the Dem admin. They need to be uncovered and publicly exposed so that we can show their actions BEFORE they can be activated, mooting their actions, as our Civil Service System will protect them from preemptive removal. My idea is a continually updated public progress report on each so we can show when they obstruct and that they were hired by Monica G et el.

    Wouldn’t it be great to use the Political appointee positions created by Rove to nullify their obstruction before we eliminate those positions?

  18. JohnLopresti says:

    rotl, Grumann Litton aerospace, from his Senate biog. True, additionally TD worked in civil government in Fairfax Co before election to congress. If I recall the research correctly, it related to some computer speech recognition software which was marketed in the defense industry aeons ago, just something I happened to have to define for a market research project for local government somewhere outside of VA, so the fragments in his public biog had more meaning than the barebone of quick perusal. I agree with the sleeper mole expose others have suggested hereinabove, too.