Im-me-di-ate: adjective (DOJ) 1. More Than 2 Years

Goddamn did DOJ bring the stupid in their response to CREW’s brief in its Cheney interview FOIA.

745 days ago, George Bush commuted Scooter Libby’s sentence, thereby ensuring that Scooter Libby would not testify about whether–as all the evidence indicated–Dick Cheney had ordered him to leak Valerie Wilson’s identity to Judy Miller. 745 days ago, for all intents and purposes, the investigation of Dick Cheney’s involvement in outing a CIA officer ended in the dead end of Scooter Libby’s successful criminal obstruction of justice.

Yet DOJ describes CREW’s efforts to get Cheney’s interview report via FOIA to be an attempt to get "a ruling that would make public interview reports of high ranking White House officials immediately upon the conclusion of the relevant investigation." For the whizzes in DOJ, I guess, 745 days equates to "immediate."

But that’s not the only heap of stupid they bring in this filing.

Next, these whizzes argue that if DOJ turns over Cheney’s interview, then senior White House officials will no longer provide criminal investigators a "full account of relevant events."

This argument, however, is ultimately immaterial because, while in some circumstances public pressure could possibly force a White House official to sit down for an interview, it cannot ensure that that official will be willing “to provide law enforcement officials with a full account of relevant events,”

Dudes! Let me tell you a secret about this case!! It ended in a successful perjury and obstruction of justice prosecution that revealed–among other things–that convicted felon Scooter Libby had worked out a cover story with Dick Cheney before Libby first testified to the FBI! Had Cheney given a "full account of relevant events," then Scooter Libby probably wouldn’t have been prosecuted successfully (or, at the least, Judy Miller wouldn’t have had to testify or Cheney would have been charged with obstruction himself).

Next, DOJ claims that a precedent in which the release of a summary of deliberations was found not to constitute a waiver over the source documents of that deliberation applies here, in which key source documents have already been released, but which wouldn’t–DOJ argues–constitute a waiver for the interview report which is fundamentally a summary. For DOJ, a precedent finding that a summary doesn’t equal source is the same as a source not equaling a summary. 

The D.C. Circuit held that the release of the report did not constitute a waiver of privilege and that the White House could retain privilege over all documents that had not specifically been provided to individuals outside the government. Id. at 741. Similarly here, the fact that DOJ has released certain deliberative material into the public domain as part of the prosecution of I. Lewis Libby does not waive privilege over other, unreleased, documents that may contain material relating to the same deliberations.

Which is all the more stupid given that Cheney’s interview report is not the deliberation itself (that is, it’s not like he was discussing potential policies that Fitz ought to introduce into investigating Vice Presidents), and–more importantly–the content of this very interview was already released by Dick Cheney’s lawyer! DOJ is effectively arguing that the precedent finding that a summary does not equal source is the same as summaryA does not equal summaryA.

Then, these instruments of stupid at DOJ dismiss the extensive list that CREW submitted of prior examples where interview reports and related documents have been released by appealing to the "case-specific factors" of this case.

Plaintiff seems to suggest that the existence of this material within the public domain undercuts DOJ’s position that the release of the disputed material would deter or diminish future cooperation by senior White House officials such as the President and Vice President. It does not.

It is not DOJ’s contention that interview reports of White House officials can never be released without impairing law enforcement interests. Rather, the predictive judgment as to whether release could deter future needed cooperation by senior White House officials depends on case-specific factors such as how high-ranking the official was, whether he or she or the President he or she served was in office at the time of the interview, and the period of time that has elapsed since the individual has left office. Cf. Breuer Decl. ¶ 5 (noting the particular deterrent to cooperation that could exist if an official “believe[s] that the information provided could become public while the official is still in office”). The facts in the instant case warrant non-disclosure: the interviewee was the then-sitting Vice President of the United States and disclosure was initially sought while he was in office and is sought now only months after he left office. [my emphasis]

First of all, that reference there, in the middle of the second paragraph, that promises "case-specific factors"? Here’s what it says:

In addition, as a general rule, a prosecutor cannot tell a White House official how long he or she believes an investigation may last, and the official may thus believe that information provided could become public while the official is still in office. Therefore, if law enforcement interviews of the President, Vice President or other senior White House officials become subject to routine public disclosure, even upon the conclusion of an investigation, there is an increased likelihood that such officials could feel reluctant to participate in voluntary interviews or, if they agree to such voluntary interviews, could decline to answer questions on certain topics.

DOJ has not provided case-specific factors. On the contrary, it has presented one big hypothetical with no specific proof in the least, and even the specifics they repeat–sitting Vice President, disclosure only months after leaving office–are met or exceeded by a slew of examples in the CREW list, starting first and foremost with "Bill Clinton, President."

Indeed, DOJ has been presented with a list of prior examples where high level White House officials have been interviewed while in the White House, and the contents of the interview were released while the high level officials were still in office. DOJ has been presented with evidence, in fact, that "public disclosure" already is "routine"–precisely the circumstances that, they claim, will inhibit cooperation.  And their response to that is, "golly, you’ve got to look at the specific facts of the case." But the specific facts in this case–in which Dick Cheney, knowing that, "law enforcement interviews of the President, Vice President or other senior White House officials" already were "subject to routine public disclosure, even upon the conclusion of an investigation," cooperated willingly. 

Dick Cheney’s willing cooperation (but not, perhaps, a "full account of relevant events") in this precise case is proof that DOJ’s claim is full of shit! Dick Cheney knew that release of interview contents was the norm, and yet he willingly cooperated without even trying to get any kind of waiver. Dick Cheney’s cooperation proves that prior release will not dissuade cooperation. (Hell, if Ken Starr’s obsession with Bill Clinton’s blow job wasn’t going to inhibit Dick’s cooperation, I don’t know what would.)

(To be fair, DOJ does some impressive back flips to explain why these examples aren’t like this case, including saying that some of them are so old–dating to prior Administrations or investigations in which Cheney personally participated–that the examples are somehow invalid. DOJ would have you believe Cheney slept through Watergate in his office at the White House.)

Jeebus, I hate when people whose salaries my taxes pay produce the stupid at such high volume!!

Hidden under these piles of steaming stupid, however, there is one nugget that explains DOJ’s real worry. In response to the long list of things included in Cheney’s interview that have already been revealed in the public record, apparently, there are some statements that are unlike what has been released in the public record.

Moreover, as a factual matter, the portions of the FBI 302 protected by the deliberative process privilege are not identical to the public domain information submitted by plaintiff, and in several instances, the FBI 302 contains information that is not at all similar to any information found in plaintiff’s submission.

Now, as I’ve explained, there is one claimed item that was never released in the public record (Cheney’s conversation with Condi during leak week) and one item that was referenced but not explained in detail (Cheney’s discussions with Tenet which may have been where he learned of Valerie’s identity). Two items.

So maybe DOJ is trying to protect those two items (I guess I can understand, as the two conversations may reveal that the VP learned of a CIA officer’s identity, then told the National Security Advisor they were going to leak that identity–but that’s the most extreme case imaginable). 

But DOJ is not, just, referring to "information that is not at all similar" to information in the public record. It is also trying to hide information that is "not identical to the public domain information."

In other words, the evidence presented at trial that Dick Cheney learned of Plame’s identity, passed it on to Libby in the context of responses to journalists, apparently ordered Libby to leak it to a journalist, but didn’t tell anyone else at the White House up to and including George Bush about that order–DOJ is stating that Cheney said some things in his interview that are "not identical" to those things revealed at trial.

And that, my friends, is what this heap of steaming stupid is designed to keep hidden. 

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  1. JimWhite says:

    Let me see if I’ve got this straight. DOJ won’t release the info because it will provide proof of lies from Cheney. And they say they won’t release it because they think releasing it will prevent future administrations from telling the truth when they are questioned.

    Nah, they’re not holding onto it to prevent future lies. They just don’t want us to know how badly Cheney punked them.

    Hey DOJ: Marcy’s been telling us this for years. We already know. Even Fitz knew. See “cloud” references.

    • emptywheel says:

      Actually, I’m beginning to think that they won’t release it because he told the truth. That is, he revealed that he was leaking Plame’s identity. I’m trying to figure out why he didn’t charge Cheney, too. But it’s one of the few sensible answers that would explain why they’re trying so hard to hide this.

      • Petrocelli says:

        When I grow up, I wanna be as smart as Marcy Wheeler !

        I’d also like to say Blowjob on National TeeVee … possibly in the company of several batshit crazy “spiritual leaders”.

      • skdadl says:

        But why would Fitz have talked about the cloud over the OVP if Cheney had told him the truth? Or does the truth come in parts here?

        I just love it when you do this.

        • readerOfTeaLeaves says:

          Well, bricklefritz! You and I seem to be pondering the same general question…

          • Loo Hoo. says:

            bricklefritz:

            The word you’ve entered isn’t in the dictionary. Click on a spelling suggestion below or try again using the search bar above.

            • readerOfTeaLeaves says:

              OT — wordsmithy digression:

              ;-)))))))))))))))))))))

              skdadl used it one time; said he/she made it up as a child.
              I was probably be too offensively profane or something, and skdadl made some cheering, witty comment along the lines of “hey, when I was a kid and didn’t want to swear, I invented a word that had lots of syllables — enough so that I could vent, without being obscene’.

              (I’m sure that’s **not** what skdadl said, but memory is oddly quirky and that’s the gist as *I* recall it.)

              I thought the word ‘bricklefritz’ had a lovely sound; a sort of ear-tickling swooping sort of sound. Plus, that hard ‘br’ at the front end and that very satisfying “CK” in the middle (sort of evocative of another “CK” that often comes out of my own mouth), made it a first-rate sounding word.

              And skdadl also contributed what I regard as an absolutely charming expression: “Oh, my paws and whiskers.”

              What is it about the eloquence of the Canadians who comment here? Not only literate — like Anthony Burgess, they make up positively amazing words, with genuine utility.

              ‘brickelfritz’ may not be in Websters, but it has a fond place inside my cranium. FWIW.

              • skdadl says:

                LOL. It came from my frustration at trying to read characters in the funny papers who said things like !%$#$&% — instead of swearing, ie — you know how they do, or did? I was a very literal-minded little kid, and I couldn’t stand not being able to sound out a word I was reading, so I made up an all-purpose word for suppressed swearing — bricklefritz! It can come in handy.

                And rOTL has the most amazing memory. It’s been six months at least since I wrote that out before.

                • readerOfTeaLeaves says:

                  Well, the memory isn’t what it used to be, but the odd bits that make me go, “HUH?!! That makes no sense!” tend to catch like fish wiggling and flopping around in a net. (The rest of the info seems to elude me… water through racing through a sieve 8-p

                  But yeah, I know the aggravation of not being able to sound out a word! In that respect, learning my modest, tiny bits of Japanese was sheer heaven… (two of the three written Japanese are phonetic syllables, but the kanzi is — like Chinese — pictographs. Very relaxing, but tons of nuance and quite easy to misread (!).)

                  Speaking of ‘reading’, EW’s ‘readings’ are astounding.
                  I never seem to tire of having things that would ordinarily make my eyes glaze over turn into fascinating puzzles.

      • phred says:

        A chink in Knight Fitz’ shiny armor? I can see why DoJ would want to hide that. Fitz is one of the few DoJ attorneys with any credibility at all. So if it looks like he took a dive, DoJ might just as well turn out the lights, board up the windows and doors and go home.

        • readerOfTeaLeaves says:

          Maybe he took a dive, but have you read EW’s Ghorbanifar Timeline lately? Didn’t Fitz take years to uncover prior skulduggery in other cases…?

          (Sorry, but I just can’t quite face giving up my optimism on a Friday evening…)

      • readerOfTeaLeaves says:

        Moreover, as a factual matter, the portions of the FBI 302 protected by the deliberative process privilege are not identical to the public domain information submitted by plaintiff,and in several instances, the FBI 302 contains information that is not at all similar to any information found in plaintiff’s submission.

        The plot thickens.

        Wasn’t Cheney interviewed separately from Bush? And wasn’t Fitz really trying to get to Cheney in order to indict Bush? Is it possible that despite the fact that this whole mess was set up to ensure ‘plausible deniability’, maybe something went amuck?

        Is it possible that something Cheney (or Scooter?) said to the FBI caught up with GWBush?

        Because I still think it’s weird that Bush wouldn’t even look at Cheney during the inauguration. Bush was pissed about something, and despite Cheney’s vehement insistence that Scootie-Poot ‘deserved’ a full pardon, Bush didn’t give it.

        Is Sealed vs Sealed potentially relevant here?

      • Garrett says:

        In other words, the evidence presented at trial that Dick Cheney learned of Plame’s identity, passed it on to Libby in the context of responses to journalists, apparently ordered Libby to leak it to a journalist, but didn’t tell anyone else at the White House up to and including George Bush about that order

        Isn’t a bit of rewrite needed on this to be the official version? Stipulation or not contest or whatever it was about the NIE. Then, for the “not identical” part, you get exactly what you are saying.

        • Mary says:

          We’ve tossed some of that back and forth. EW pretty rightly doesn’t want anyone to get sidetracked by the NIE leak cover story from the fact that Cheney probably was the one who told Libby to leak the CIA identity. With the leak of the CIA identity, they had a specific Congressional statute (IIPA) in addition to the typcial covert classification issue.

          They think they can get around the NIE for two reasons, one is insta-declassification and the other is that pursuing it was outside of Fitzgerald’s mandate (which was a very narrow mandate to look at just the Plame leak and was even more decisively particularized during the Libby trial, with the challenges to Fitzgerald’s appointment).

          I’ve always argued that what Fitzgerald put on the record for the NIE leak was a clear violation of the National Security Act (re: planting classified info into domestic press to influence domestic politics) and should have warranted it’s own investigation/response/reaction and that should have been addressed (and if you look at the transcripts of the discovery hearings on that NIE leak, Fitzgerald sounded imo very dogged on not necessarily wanting to say that what Cheney did was legal -just that it was not something he could/would charge for)

          But I do agree that the NIE leak was something tossed out as a safe cover for Libby’s meeting with Miller. Especially since it got so quickly cleaned up with the subsequent public declassifications -it was a “eh, how much trouble could I get into for this anyway” bone to toss out to someone who couldn’t do anything about it anyway.

          Still, if Cheney did actually confess that he told Libby to out Plame, that would be interesting to know.

          • readerOfTeaLeaves says:

            Well, whatever it was about, at some point klynn posted some links to the now-defunct AIPAC investigation. The two lobbyists charged were Rosen and Weissman, charged with exchanging classified info (with Larry Franklin, who worked under Feith at OSP).

            Then Laura Rozen had reported that at some point when Franklin told Rosen and Weissman something [the contents of which were not reported], they went and whined to either Ledeen or Elliott Abrams. And IIRC, wasn’t Abrams at NSC?

            I swear, if this damn thing was diagrammed it would look like a bunch of loops going from OVP to DoD-OSP to NSC, around, and around, and around, and around… oh, and some looping in with AIPAC.

            Sorry, but no simple cellular analogies come to mind off the top of my head on a Friday evening. Other than that OVP and DoD-OSP were like institutional tumors, sucking all the nutrients out of the system. At least, that’s my at-a-glance view of it all.

            But FWIW, I don’t actually understand what’s in an FBI 302 ‘protected by the deliberative process’. I don’t know whether that is only the text of interviews, or whether it also includes other info. Anyone know…?

          • Garrett says:

            It’s kind of what I’m saying, though. Forget you know anything about Marcy’s version. Go with the official version. “Information that is not at all similar” pretty well expresses it.

      • Mary says:

        I can’t wrap my head around him actually admitting he directed the outing. I think if he did, Fitzgerald would have added that to the fibbing charges against Libby, who never quite agreed that had happened.

        You do have to wonder what was going on and you may be right, but I just think a lot of things would have gone differently if that was the case. I can see Cheney pointing them to Armitage or even Rove, and maybe getting pushed hard by Fitzgerald on some non-Plame issues, like how Cheney thought he could pull of insta-declassification by virtue of planting a story in domestic press, or even things a bit further afield, like the Niger forgery in general (Fitzgerald might have been testing the borders of his mandate). But I have a hard time with Cheney just saying – Yeah, I told Libby to tell the press that Wilson’s wife is CIA and got him the job as a boondoggle, bye bye Mr. Prosecutor, don’t let the door hit you …

        If he did, though, it sure would be nice to know.

      • Garrett says:

        I’m trying to figure out why he didn’t charge Cheney, too.

        In this version of it, what did Dick Cheney do? Nothing.

        What did Scooter Libby do? He perjured himself. He obstructed justice. He threw some sand.

        • emptywheel says:

          Mary,ROTL, skdadl

          Yeah, I’ve been puzzling through all that–and will do a post tomorrow.

          If he admitted leaking Plame, then (as ROTL points out) the issue may be, did Bush okay it, or did Cheney say he did it on his own? If the latter, then O’Donnell’s statement becomes all the more dangerous (because if and when it becomes clear that Cheney testified HE did it alone, then at least one reporter knows the story was different in 2006. (Which is not to say Isikoff would admit it). But one of the big issues would be the question of whether Cheney did talk to Bush to get the leak okayed or not. In which case the cloud is, did Cheney obstruct justice to protect Bush? The other, more minor point, is whether Cheney sustained the Libby story that no one else knew that Plame had been declassified.

          THen there’s the stuff Cheney did to work with Libby to do a cover story. Of course lying to the press (or orchestrating a lie to the press) is not obstruction, nor–if Cheney didn’t repeat Libby’s cover story–is working on a cover with Libby.

          So I don’t know–like I said, I’m still working on this.

            • phred says:

              EW, just a quick question about the realm of possible inconsistencies… The quote refers to the plaintiff’s submission. Is the information submitted only from the time of the trial or might there be more recent information that is now in the public domain that might be inconsistent with Cheney’s testimony. Just curious, as I have not read any of the plaintiff’s documents and the comments in the thread seem to focus on information introduced at the trial v. Cheney’s interview.

  2. TarheelDem says:

    Can’t claim the Obama DOJ is engaged in a political witch hunt, can you?

    Interesting that. Hope the court treats the stupid with the same response you do.

    • PJEvans says:

      How do you know it isn’t Bush’s Cheney’s leftovers at the DOJ who are doing this?

      (I’ll admit that I’d be much happier if they weren’t so busy protecting the criminals from us the consequences of their actions.)

  3. bobschacht says:

    Hey–
    I’m counting THREE current EW threads, and another by bmaz, running on this website concurrently, each with comments after 4 PM. I think it is a sign of maturity(?) for this place that the thundering herd does not all abandon the last thread whenever a new diary is published, regardless of subject. Who knows, maybe EPU-land will shrink to a size where it can be drowned in a bathtub … (Oops, wrong metaphor!)

    Bob in HI

  4. behindthefall says:

    Silly DOJ. You had to go mess up the living room after emptywheel had arranged everything so nicely. And THEN you had to pretend you hadn’t done it! And that even if you HAD done something, you hadn’t changed anything, really. Mama is _NOT_ happy with you boys.

    We’re working on a suitable punishment. For now, go clean up your rooms. And no music, either.

  5. alabama says:

    It might be the case that they are determined to control the clock–that they know this stuff will get out in good time. If so, why the hell would they want to do that? Do they have some grand project in mind that has to be rolled out one item at a time?

    To put it another way: this doesn’t feel reactive, improvised. It feels deliberated, and is so obviously stupid that their might just be an agenda of disclosure that I can’t imagine.

    Fantasies of this sort are my way of keeping somewhat sane when I read this stuff. (Oh, and thank you, Marcy!).

  6. Mary says:

    Two years AND a new administration.

    But IMO this is all even more simple than all that.

    DOJ gives out confidentiality agreements all the time – they know how to do it.

    Cheney had brain trust Addington protecting his interests.

    DOJ and Cheney didn’t enter into a confidentiality agreement (or you could say Spec Pros and Cheney didn’t enter into a confidentiality agreement).

    So all the parade of horribles is stupid. They can all be addressed by a confidentiality agreement which people ask for and DOJ gives all the time.

    Now whether or not, if there had been such an agreement, the court should nevertheless require production due to the public interest and (and btw, almost any confidentiality agreement you ever see has a out written in it that it is not a violation to produce the information subject to a valid court order) what impact such a ruling might have (on those things like lack of cooperation etc.) isn’t something before the court.

    Fine – lets look at specific facts. In this case the facts are that there is no confidentiality agreement and that all parties to the conversation were experienced and able to negotiate a confidentiality agreement if one had been requested or required. They didn’t.

  7. fatster says:

    Could this “heap of steaming stupid” (love it!) have been produced by some of those Dick “Dick” leftovers still in the DOJ? That would be poetic justice, anyway.

    • skdadl says:

      What sort of day was it?
      A day like all days, filled with those events that alter and illuminate our times …
      and you were there.

      I never salute, but I’m happy to salute that fine man. He was daringly generous to a young journalist I know, for the best of reasons, because he genuinely supported daring reporting, and the corporations be damned.

      All honour to him. (I put the u in there for Mary.)

  8. WTFOver says:

    Rep. Jan Schakowsky: CIA Investigation Will Go Deeper Than Cheney’s Program

    http://www.huffingtonpost.com/…..38364.html

    Rep. Jan Schakowsky (D-IL), chair of the House Subcommittee on Oversight and Investigations, said that the 9/11 secret counterterror program that is being characterized as “non-operational” was much more than it’s being made out to be.

    The subcommittee will also looking into the “Peruvian shoot-down in 2001,” Schakowsky said. “This is a case where the CIA actually lied to the committee,” she said, referring to the mistaken shooting down of a plane carrying missionaries. The CIA thought it was a drug plane — and told the Peruvian Air Force as much.

    • Mary says:

      GOOD FOR THEM!

      That’s one of the few positives I’ve had in awhile. There’s no way that we should have had to wait this long for someone to dig into the killing of a US missionary’s wife and infant child just because the CIA assisted in that killing.

  9. seamus says:

    Fitz was all for releasing it to Conyers, if memory serves. If these are the same documents. Something doesn’t add up.

  10. prostratedragon says:

    My, my, and me here with a new copy of On Truth (sequel to On Bullshit). No need to isolate any quotes, really, just frisbee-hurl the little tome toward the vicinity of Eric Holder’s head.

    On the lack of charge, might 5th Amendment figure in if Cheney’s not actually willing to sign a statement? Assuming no one’s corroborating his account.

  11. Mary says:

    BTW – sideways to the topic, I really think CREW might have an issue that they aren’t pushing hard enough, with the sourcing on the declarations.

    For invocation of privilege, they need WH counsel. For most of the rest, while Breuer’s ramblings about things that can all be adequately addressed by a confidentiality agreement are lovely, no one in charge of this investigation is filing any declaration. Not Fitzgerald – understandably, bc he was in-house and is subject to supervision as he conceded in court by the acting attorney general for his investigation, but also nothing from the acting AG/AG (complete with a recitation of how they became the acting AG for the investigation).

    I wish they’d poke on that a bit harder.

    • emptywheel says:

      Agree. One thing I didn’t quote are there insistences that the privilege is not Cheney’s (or OVP’s), but the White House.

      The White House is not asserting any privilege.

      One post I’m going to write before Monday is a post pointing out how, at this point, this is partly about protecting Mukasey, not Cheney.

  12. decora says:

    you are basically charging Obama’s DOJ with conspiracy to commit treason… and your evidence is… that they wont grant an FOIA request? sorry, im not breaking out my pitchfork and torches unless you have something more substantial. why dont you try interviewing people?

    • Mary says:

      im not breaking out my pitchfork

      So you’re allowed access to sharp objects, now?
      Congrats on the progress.

    • bmaz says:

      I am sorry, perhaps you have misunderstood. I am charging the Obama with conspiracy to obstruct justice. We will have to flesh out the facts, if we are ever allowed to do so, to see if it was treason as well.

      • decora says:

        “Dick Cheney learned of Plame’s identity, passed it on to Libby in the context of responses to journalists, apparently ordered Libby to leak it to a journalist . . . And that, my friends, is what this heap of steaming stupid is designed to keep hidden.”

        IE, Obama’s DOJ knows that Cheney outed Plame, which is treason, and they are covering it up, so its conspiracy. now where do i star typing the insults and stuff? would here be good?

        ps i am STar Struck!!! i cant believe that MARCY WHEELER TYPED MY FAKE INTERNET NAME AND INSULTED ME. i feel like charlie brown after he danced with that little red haired girl. omg omg omg. [email protected]@@!!!#@#@

        pps yes i am from wapo!!! i am ron suskind holy shit u outed me!1!! that’s internet treason ???!!!!

          • phred says:

            Nah, babydick has her flaws, but a peculiar obsession with treason is most definitely not one of them.

        • bmaz says:

          Far as I can tell you are pretty much just a pathetic narcissist that doesn’t know his ass from a hole in the ground about the law and not much more about the facts of the Libby case. Belligerent ignorance must be such bliss. But, hey, knock yourself out.

    • emptywheel says:

      Ut oh, guys! I seem to have upset a would-be pitchfork wielder. My best guess is that it’s someone from the WaPo that still has outstanding factual inaccuracies of their coverage here, because the WaPo always says, “do an interview” when caught with their pants down.

      Thanks for joining us, decora. First, do not assume you know whom I have and have not spoken to on this story. And second, before you make demands, try reading some evidence.

    • phred says:

      Oooo, like David Gregory or Judy Miller? Why sure — I’m sure all we need is an interview. Golly, why didn’t we think of that???

      • LabDancer says:

        decora’s concern troll complaint brings to mind one of many garbled strangled half-sentences and half-phrases that spewed out of Chuck Todd’s throat in his confrontation with the Glennzilla yesterday: “all I’m sayin’ is ya know in future ya could call me first” – which of course would have done exactly nothing to fix the point Greenwald was making but would have possibly provided Todd with a chance to plead for mercy before the point was published.

        I like the idea of making “Steaming Heap of Stupid” a regular feature here, maybe even a permanent side piece for daily or weekly updating as Obama’s AG and HOlder’s DOJ keep producing it.

        • phred says:

          Hmmm, this might require an award like the hubcap. Or maybe just it’s own timeline so we can watch the ebb and flow of the raw stupid as it washes up here on the shores of the lake ; )

        • Loo Hoo. says:

          I like the idea of making “Steaming Heap of Stupid” a regular feature here, maybe even a permanent side piece for daily or weekly updating as Obama’s AG and HOlder’s DOJ keep producing it.

          YES!

  13. MadDog says:

    …The White House is not asserting any privilege…

    Given White House Counsel Greg Craig’s apparent involvement in all the State Secrets Privilege assertions, the fact that the dog didn’t bark on this Executive Privilege one is telling.

    Anyone want to bet against me if the DOJ loses (as we all expect), that AG Holder will not appeal?

    I think he’ll leave it as settled law, but one without higher court involvement and hence something to be possibly argued with a better case in the future.

    • bmaz says:

      Given White House Counsel Greg Craig’s apparent involvement in all the State Secrets Privilege assertions, the fact that the dog didn’t bark on this Executive Privilege one is telling.

      I dunno that that is particularly telling. The rule on privilege is that it must be asserted and protected or it is considered waived. That point was when Cheney, Bush and counsels were negotiating the terms for their debriefing by Fitz in order to stave off a grand jury summons. They did not assert it then.

      That said, I will take your bet, I think Obama will pursue.

      • emptywheel says:

        I’m going to tentatively go with MD on this, but let me revisit it after I write my next few posts.

        My thinking being that this is just a dog of an argument. I can’t fucking believe they tried to say, “oh, that routine public release of interviews that are perfectly on point? They don’t count because we’re sure Cheney, who was personally involved can’t remember them or couldn’t when he was deciding whether or not to cooperate.”

        • bmaz says:

          Oh, they are dog poop arguments alright, but that has not stopped Obama and his DOJ in other areas to date. I bet the trendline….

          • emptywheel says:

            That’s why I’m reserving my right to reverse after my next several posts.

            The other state secrets stuff would all require some kind of action from DOJ/the Obama Administration. But this seems to be closer to the HJC fight over Miers and Rove’s testimony–which is already before a special counsel, and so which would not require any activity from DOJ. Yes, the interview with Rove might expose new information (and I suspect it will). But you can still pawn any decisions onto Nora Danney, who is Mukasey’s responsibility.

            But this, presumably, would be even easier than the HJC interview. Cheney’s role in the leak is exposed, but so what, it doesn’t go anywhere.

            But I’m trying to think through whether that’s true.

      • MadDog says:

        Unless my memory is out of whack (not an unlikely occurence *g*), former AG Mumbles Mukasey did have Junya assert Executive Privilege originally to Waxman’s subpoena for the Cheney interview transcripts.

        And the fact that the Obama Administration has not repeated that assertion is why I think it is telling.

        As to the bet on AG Holder appealing, pick your favorite alcoholic beverage and you’re on! *g*

        As a side note, I don’t remember this seeing this last October via Jason Leopold:

        …Two senior DOJ officials knowledgeable about the CIA leak investigation said Saturday that officials in the Office of the Vice President issued a request to the DOJ recently to classify Cheney’s transcript. However, the DOJ officials did not know the exact timing of when the DOJ classified portions of the transcript. A DOJ spokesman did not return calls for comment Saturday…

        • bmaz says:

          That (Waxman) is not the critical point. The critical point was when the privilege was not formally asserted with Fitz.

          • MadDog says:

            Tsk, tsk. That was merely a minor technical oversight on Cheney’s Addington’s Fredo’s Junya’s part. You can’t possibly hold that against him, could you? *vbg*

            • bmaz says:

              I don’t think it was an oversight; I think they were told it was a non-starter and the alternative was GJ. O’Donnell and Addington didn’t just forget. It was a calculated play.

              • MadDog says:

                That is probably true. At the time, the EOP/OVP folks were staring into the barrel of a Patrick Fitzgerald gun.

                The later effort on EP by Mumbles Mukasey was long after the investigative and prosecutorial fires had died down, so they figured “why not?”.

          • Mary says:

            I agree on the assertions of exec privilege generically, or at a minimum raising them during the prosecution of the Libby case. But this is also where the in-house nature of the Fitzgerald investigation makes things murky – in the deliberative process and “adverse” parties areas in particular.

            Here’s what you had. A big crew, including even Lieberman, calling for a real outside independent prosecutor. There was about as much public reaction to this issue as there had been to anything at the time, with even big name R-s grumbling and with a hard push, IMO Congress could have gotten someone appointed under revised regs or even put through a special indep counsel statutory framework. Instead, Comey and Schumer got together and did an endrun, appointing Fitzgerald and Fitzgerald making it clear from the get go that his marching orders from his acting AG were that there was not going to be any report to Congress from his investigations. He said it right in the initial press conf and pretty forthrightly.

            SO you had Fitzgerald, working for Bush (in a pretty direct chain from Bush to Comey to Fitzgerald), and Cheney, working for Bush. Bush makes his public statements that he is directing what are basically all “his people” to cooperate with what is basically “his investigator.”

            This goes to train that Fitzgerald tried to push onto another track at trial on alignment of the parties. If Fitzgerald and Cheney were “aligned” parties and interests, would privilege have needed to be raised? I hate to be saying this, esp since no one at Gov is making the argument from exactly this pitchpoint, but I’m not sure it would have.

            Fitzgerald tried to keep the arguments open, but he argued from a standpoint of having more independence than, in the end, he had and also in the end, he has admitted to that lack of real independence in both the court filings (where he agreed his mandate could be changed or revoked, at any time and from time to time) and in his letters to Congress (where he makes the same admission and makes it in a kind of suggestive way IMO, where it’s not something he was necessarily required to state so specifically in the letter that I remember seeing).

            So I think it does become important to trace the control of both the OVP, WH and Fitzgerald investigation in both administrations and make sure that the right parties make the right assertions. I’m guessing one thing Obama really doesn’t want to do is have his name directly linked with Mr. 17%, but I don’t see how he gets around it at this point, esp with his EO on who can assert (and EO that needs to be highlighted in this proceeding IMO).

            I don’t know who Biden has as counsel for OVP – ? And I dont’ think it has ever been really, truly nailed down as to what happened after the initial transfer to Margolis, but he’s still around to make assertions if he’s still the guy calling the shots.

            But at some point, to get to the endpoint and despite the ridiculous arguments DOJ is making, I think someone is going to have to get to the alignment of interests and need to assert privilegeand who is asserting etc. Unless the court just says – you’ve had your chance and didn’t ever make a credible responsive argumetn – and rules. It’s just on this kind of comity issue, it seems like the Judge might give more chances to DOJ than you would ordinarily get. Not just second bites of the apple, but second apples maybe even.

            Or not.

            I guess we’ll see what happens.

            • bmaz says:

              Interesting theory; but I would argue that if Fitzpatrick was sufficiently adverse to criminally prosecute Libby who was a top man to both Cheney and Bush, and had the authority to subpoena at will, which he did, then your argument ultimately fails.

    • Loo Hoo. says:

      But, is Holder stalling some of these issues? Hoping for better Supremes?

      *Alice Forever*

      • MadDog says:

        On the States Secret stuff, I don’t believe he is stalling for better Supremes.

        To a certain extent, I think AG Holder (and the Obama Administration as a whole), feels the need to protect their executive branch “privileges” first, and only secondarily are concerned about whether the original Bush/Cheney use of States Secret in these cases was an abuse of the privilege.

        And in addition, while we feel that Obama and Holder et al. should have taken personal command of this issue (and they indeed may have), I still add that managing a 100,000 person workforce like the DOJ means you can’t be everywhere and know everything going on, nor can you necessarily feel that you can dictate each and every decision made lower down.

        I’m not trying to excuse AG Holder from this responsibility, but describe the real world as I’ve come to know it.

  14. bobschacht says:

    Well, three of the four threads are still running currently with comments after 6 PM– the Sylvestre Reyes diary is lagging behind, but still has a comment after 5 PM.
    Today has been a 3-4 ring circus at the Wheel House!

    Bob in HI

  15. MadDog says:

    OT – On the HPSCI CIA Investigation, per the AP:

    …Committee Chairman Rep. Silvestre Reyes, D-Texas, said the hit team plan, which was never carried out, is among several intelligence operations that will be investigated as part of a broad inquiry into the CIA’s handling of disclosures to Congress about its secret activities…

    …The House Intelligence Committee will examine concerns that the CIA failed to inform the Senate and House Intelligence committees about former President George W. Bush’s wiretapping program, harsh interrogation techniques and the destruction of interrogation videotapes, according to a committee aide.

    The inquiry will also focus on the how the CIA handled disclosures about the 2001 downing of a small plane carrying American missionaries over Peru and on other cases, said the aide, who spoke on condition of anonymity because he was not authorized to discuss the matter publicly…

    …Separately from the committee’s inquiry, Rep. Jan Schakowsky, D-Ill., will head an investigation into the details of the CIA plan to send out teams of killers, she said Friday…

  16. bobschacht says:

    My favorite non-dictionary cuss word was something like ”sreberdegebit”(?) –coined by Fredrik Brown as a name for some minor devil who was always making trouble, in one of his very very short stories.

    Bob in HI

  17. THATanonymous says:

    Well, I’m not sure if I’m flattered by the company but, apparently the DOJ is also telling us that the law is not the law.

    TA (NOW what do I use for a tag line?)

  18. stryder says:

    “I like the idea of making “Steaming Heap of Stupid” a regular feature here, maybe even a permanent side piece for daily or weekly updating as Obama’s AG and HOlder’s DOJ keep producing it”

    Maybe some of these will work

    “I cannot believe how incredibly stupid you are. I mean rock-hard
    stupid. Dehydrated-rock-hard stupid. Stupid so stupid that it goes way
    beyond the stupid we know into a whole different dimension of stupid.
    You are trans-stupid stupid. Meta-stupid. Stupid collapsed on itself
    so far that even the neutrons have collapsed. Stupid gotten so dense
    that no intellect can escape. Singularity stupid. Blazing hot mid-day
    sun on Mercury stupid. You emit more stupid in one second than our
    entire galaxy emits in a year. Quasar stupid. Your writing has to be a
    troll. Nothing in our universe can really be this stupid

    and other assorted gems (some are downright vicious)
    http://www.belowtopsecret.com/…..342463/pg1

  19. manys says:

    if DOJ turns over Cheney’s interview, then senior White House officials will no longer provide criminal investigators a “full account of relevant events.

    Well, not voluntarily.

  20. BoxTurtle says:

    Yes, it’s a heap o’ stupid. ObamaCo doesn’t really expect to win. Their goal from the start is to drag this out as long as they can.

    So they submit the pile o’ stupid. The court must give the ACLU time to respond, then hold hearings. Then we wait for a ruling. Time passes.

    A ruling is made. The judge calls the crock a crock. Now, Obamaco gets what they’ve wanted: an appealable order. So they appeal, forcing the appeals court to wade through the crock again.

    Then we go to the supremes.Maybe they side with the ACLU, maybe they don’t. But more time passes.

    See, they don’t care about the stupid. They want the time.

    Boxturtle (You’ll see lots more stupid for the courts to rule upon before this is over)

    • bmaz says:

      For the sake of argument only, let us give Obama/Craig/Holder that benefit of the doubt you and LD are proposing; how is it any better or morally superior to Bush/Cheney? Hell, at least Bush and Cheney believed in their bullshit; under your and LD’s hypothetical, Obama et. al do not and still play out the string out of craven political game advantage. I could make out the argument that is even worse.

      • BoxTurtle says:

        I could make out the argument that is even worse

        I didn’t mean to imply in my post that there was anything honorable or aboveboard about ObamaCo’s filing, it is simply a continuation of BushCo’s delay strategy. The government has bottomless pockets, the ACLU and other plantiffs do not. Also, perhaps some of those plantiffs will get on small planes with flightworthiness issues.

        I’m thinking we’ll be lucky if the appeals court rules on whatever appeal the government generates by this time NEXT year, never mind the supremes. Anything that comes from anywhere but the supremes will be appealed.

        I wonder why they just don’t plead nolo and then argue damages. That would keep this information from the general public, which isn’t paying much attention anyway.

        Boxturtle (As to which is worse, flip a coin)

      • LabDancer says:

        I wouldn’t want to be understood as giving Obama or Holder CREDIT for this position, assuming it’s anywhere near accurate [which I’m proposing it might well be].

        Thousands of civil cases with individual facts are in one category; they can take a long time to catch up on. Criminal cases with some political sensitivity or notoriety, but mainly involving folks in custody, take priority over the former group. The Gutmo group take first priority, and it’s impossible for me to accept that the transition group wouldn’t have arranged to dedicate a group of lawyers whose judgment they trust to take a thorough look at the publicly available material and do their best to get access to anything else in the interim, failing which they could gather up all the necessary additional info in a matter of a month to six weeks. I mean, they could have given this assignment to ms IANAL fearless leader emptywheel, and with just the resources she has available here, the job would’ve been done well within that period. I understand the view of Congress as a bunch of ADHD-ridden dogs and cats, but IMO the time to have struck on Gutmo was in the first glow of the honeymoon.

        Again, understanding the POV and agreeing with the approach are not the same thing.

  21. fatster says:

    Fox on the run
    by John Allemang

    From Saturday’s Globe and Mail
    Last updated on Saturday, Jul. 18, 2009 03:36AM EDT

    “Mr. Cheney’s absence of introspection is consistent with a pattern set during the proud and secretive Bush presidency that keeps on revealing itself, even in the Obama era. When acting on principle, as the representative of what he calls “a strong, robust executive authority,” Dick Cheney is never wrong. And how can he be, since he made up the rules?

    “But that’s exactly where the bunker mentality gets it wrong. With the ascendancy of Barack Obama, the rules have changed, the secrets are being exposed, the patriots start to look like enemies of the state and the hunter has become the hunted.

    “Yet even as he faces his judgment day, Dick Cheney still thinks that he’s in charge.”

    Link.

  22. Leen says:

    Jesus Mary and Joseph

    “Rather, the predictive judgment as to whether release could deter future needed cooperation by senior White House officials depends on case-specific factors such as how high-ranking the official was, whether he or she or the President he or she served was in office at the time of the interview, and the period of time that has elapsed since the individual has left office”

    Is Cheney “above the law” or not? So far looks like he is!

    They are not talking about protecting National Security they are protecting a former V.P. from being held accountable for purposely outing Plame. This is insane.

    The clouds are still haning over Cheney and the Dept of Justice. Thick and dark clouds

    • fatster says:

      And they sure aren’t talking about protecting the Constitution. Apparently, it now applies according to whim.

    • Mary says:

      Yep – after all, obviously if someone is high ranking in an adminsitration in office, DOJ feels they should be able to rely on their admissions of criminal conduct being covered up have their statements protected to protect *proper* functioning of DOJ.

      BTW – on the appeal front I vote that Holderco will appeal from an adverse ruling on release. Delay, delay, delay, delay – point over there, and oh yeah, over there too, etc.

  23. BayStateLibrul says:

    Fitzy: If only the law required a final report, he could have summarized
    his Plame work. Bastards, for deleting that requirement.

  24. BayStateLibrul says:

    When can Fitzy speak? Imagine if EW could be granted an exclusive
    interview, better than Playboy…

      • BoxTurtle says:

        Good idea. Marcy won’t have to worry if she says “blow job” there.

        My vision is that Fitz is in the Judicairy committee hearing room, Marcy is questioning him and the entire committee forced to listen to the questions and answers. On live TV.

        Boxturtle (And the Sgt At Arms prevents the Committee from interrupting. *SIGH*)

    • emptywheel says:

      You know, I proposed an interview in which I would look to evidence in teh public record and he would confirm that I read it correctly, all taped so no one could think that he had leaked anything to me.

      I should have proposed it earlier. As it happened, I did so just as Mukasey was starting his effort to bury all this–like, literally, the same day.

  25. Mary says:

    That’s why I looked to the operative time frame possibly being the filing instead of at the interview. Fitzgerald’s response to the alignment argument (where the court originally ruled he was aligned) was that the information, documents and responses he had received had been in response to a subpoena. I don’t think that’s the case, though, with respect to the WH and OVP interviews.

    I do think someone should do with Bush in this case what some of the more recent filings have been doing with Obama. They should go back and pull his statements about wanting to get to the bottom of things, etc. as public record evidence that he was not seeking or requiring confidentiality or invoking privilege with respect to the interviews in his admin.

    • bmaz says:

      I see the argument, glad you are not representing them, but I still think it ultimately fails. My counter would be that it is exactly because “…the information, documents and responses he had received had been in response to a subpoena” was the status Fitz enjoyed as to investigative discovery is why the WH subjects were willing to waive privilege to not go that route. It was a calculated and knowing tradeoff: the possibility that it could, someday, be public info versus the humiliating circus atmosphere of having to trudge down to the Grand Jury and give sworn testimony but perhaps retaining 6(e) protected status. GJ transcripts get leaked; just ask Barry Bonds. I still maintain it was a waiver.

      • emptywheel says:

        Incidentally, one file I don’t have in soft copy on my computer (unless it was on teh harddrive that mr. ew just zapped) is the opinion on releasing parts of Fitz’s affidavits. And I don’t remember whether the most recent one was District or Circuit. But if it’s Circuit, then there would be pretty strong language about setting aside grand jury precedent IN THIS CASE because of the public interest.

  26. BayStateLibrul says:

    OT… what kind of beer does Obama drink? I think I saw him having a cold
    one at the All Star Game. It’s humid, and close to 90 here, for the first time. Thirsty?

    “President George W. Bush didn’t drink beer, but President Barack Obama does, which means that Craig Purser, president of the National Beer Wholesalers Association, is a happy man. “We’re definitely pleased to see him enjoying a cold one,” Purser said in a POLITICO podcast. “It’s great to have someone who understands and enjoys the product.”

    • Mason says:

      There are no drinkable domestic beers with the exception of small local breweries with limited distribution.

      Oh, and one more thing. All lite beers suck!

  27. Loo Hoo. says:

    Check it out!

    Ignoring criticism – namely from Senator Majority Leader Harry Reid – that inter-party targeting was ineffective, Barack Obama’s campaign arm is expanding its health care ad buy into the districts of key conservative House Democrats.

    At least he’s being aggressive on health care.

    • Neil says:

      Good question. I’m eating late this evening and I’m not so interested in doing a lot of cooking. I’ll probably have fresh fruit and berries with yogurt and a ham sandwich on pumpernickel. If I’m still hungry I’ll snack on popcorn and tall cold drink while watching the Tour de France on versus. What are you having?

  28. Neil says:

    That’s not healthy Bmaz, just one punctuation-sized crumb. I had blueberries and plain yogurt with raspberry preserves. Something more later.

  29. Jkat says:

    “you can get anything you want at .. marcy’s little blog ..”

    [ come on in ..
    the door’s around back ..
    just a half-a-mile from
    the railroad tracks ..]

    annd you can get anythang you want … “:)

  30. timbo says:

    My guess is that there was an EO that we do not know about and may not have been actually written into the register that Cheney’s interview reveals. The thing is…and as Fitzgerald was trying to point out in his closing statements during the Libby prosecution…is that the Congress needs to take appropriate legal proceedings against sitting nationally elected and appointed officials seriously…not as things to be “taken off the table” because the Congress has no cojones for it.