Back to Breuer’s Claims about Future Investigations

Lanny Breuer, he of the potential conflict, has argued that DOJ must keep Dick Cheney’s CIA Leak interview secret because, if it doesn’t, then senior White House officials may not cooperate with DOJ investigations in the future. 

Moreover, if interviews of senior-level White House officials become subject to routine public disclosure, the White House official may agree to talk only in response to a grand jury subpoena in order to obtain the confidentiality protection of Rule 6(e) of the Federal Rules of Criminal Procedure.

And if senior White House officials don’t cooperate with DOJ investigations, it may deprive investigators of information about the underlying White House policies tied to alleged crimes. 

In any such investigation, it will be important that White House officials be able to provide law enforcement officials with a full account of relevant events. Any such investigation may delve into or require a full accounting of internal White House deliberations or other government operations. Questions may cover, for example, conversations between the President or Vice President and senior advisors, the decision-making process on specific policy matters, advice given to the President or direction provided by the President, and internal discussions relating to White House interactions with other Executive Branch entities and with Congress.

Writing just one week after Breuer’s boss, Eric Holder, announced an investigation into torture that may ultimately consider White House deliberations (or at the very least, OVP machinations), I’m sympathetic to Breuer’s claimed concern with obtaining such high level cooperation.

But I think nothing undermines Breuer’s argument that DOJ’s efforts to keep Cheney’s CIA Leak case interview secret will enhance cooperation in the future more than Dick Cheney’s suggestions that he’s not going to cooperate with the torture investigation, regardless of what happens.

WALLACE: If the prosecutor asks to speak to you, will you speak to him? 

CHENEY: It will depend on the circumstances and what I think their activities are really involved in. I’ve been very outspoken in my views on this matter. I’ve been very forthright publicly in talking about my involvement in these policies. 

I’m very proud of what we did in terms of defending the nation for the last eight years successfully. And, you know, it won’t take a prosecutor to find out what I think. I’ve already expressed those views rather forthrightly.

Of course, maybe Fourthbranch said that because Breuer–who as head of Criminal Division may well have some oversight of the torture investigation–has telegraphed that calling someone like Cheney before a grand jury "could risk the perception that the investigation itself was political."

In addition, forcing White House officials to be brought before grand juries could have the effect of injecting the law enforcement investigation itself into the political process, which could intrude upon government operations at the highest level of government, and which could risk the perception that the investigation itself was political, thus undermining public faith in the impartiality of the judicial system. Baseless, partisan allegations that, easily could be investigated and dismissed through voluntary interviews now may have to be investigated through the specter of the grand jury process.

I have a counter-proposal to Breuer’s laughable claim that doing what has long been routine–releasing a high level White House interview–will have different effects than it has always had. And that is this:

If you don’t act like the Law, then Cheney’s not going to treat you as the Law.

And if you refuse to release Cheney’s interview because you want to avoid hurting Cheney’s feelings, you’re only going to be treated like a chump … oh, about two days ago.

In any case, Cheney has already proven Breuer’s premise to be false: people like Cheney are only going to cooperate if there is a political need or the legal force. And protecting him in this way only serves to dismantle both of those.

34 replies
  1. fatster says:

    As usual, you get right to the point: “But I think nothing undermines Breuer’s argument that DOJ’s efforts to keep Cheney’s CIA Leak case interview secret will enhance cooperation in the future than Dick Cheney’s suggestions that he’s not going to cooperate with the torture investigation, regardless of what happens.”

    Kudos. Lots and lots of kudos.

    • bobschacht says:

      Not meaning to quibble, but doesn’t this sentence,
      “But I think nothing undermines Breuer’s argument that DOJ’s efforts to keep Cheney’s CIA Leak case interview secret will enhance cooperation in the future than Dick Cheney’s suggestions that he’s not going to cooperate with the torture investigation, regardless of what happens.”

      need a “more” before the “than”?

      Bob from HI

  2. BoxTurtle says:

    It must be nice to be special. If a prosecutor wanted me to cooperate, he’d just ask. Then he’d subpoena me in front of his Grand Jury. Or maybe he’d go right to step two. I doubt he’d worry about a “Chilling effect” on other DFH computer programmers.

    And if I said “I don’t recall” once too often, he’d set an example of me and have the “Chilling Effect” work for him!

    Boxturtle (It’s GOOD to be king!)

  3. earlofhuntingdon says:

    Mr. Cheney is a classic example of a guy who wouldn’t join a club that would accept him as a member. After having acquired five deferments from the draft during Vietnam, Mr. Cheney decided that it was safe to measure worth by courage. The only thing he hates more than someone who disagrees with him – and ironically displays the courage he claims to prize – is someone who agrees with him out of fear.

    Those journos who kowtow to him earn his disdain, even while he uses them for his political pleasure. Which puts Russert and the rest of the Village journos in the same boat as George Bush.

  4. manys says:

    So what? If in the future no administration members will talk without a subpoena or contempt of court citation, then so be it. It won’t get us any less cooperation, information, knowledge, or understanding than we’re getting now.

    What Lanny seems to be saying is that there has developed a chummy relationship among the White House and DOJ that causes them to collude and banter as long as nobody does anything about any problems that crop up. Totally paternalistic with regard to the citizenry. This is not a good thing, FYI, so boo hoo for him.

    And besides, as it concerns Cheney, releasing the interview will probably only serve to motivate him to talk MORE. He has a driving ambition to keep his own name clear, so anything that comes out will cause him to be booking time immediately on the Sycophancy Network to explain himself. So it has been, so shall it always be.

    • Sparkatus says:

      Exactly. This is classic use it or lose it situation. Breuer is concerned that an investigation will chill future cooperation. But if there’s no investigation of malfeasance in the context of breach of habeas corpus, torture, violations of FISA and other felonies alleged against Bush and Cheney, what is the point?

      Always keeping the powder dry isn’t a great strategy. Sometimes, using the powder gets you more powder. I’ll give one thing to Cheney, Rove (and W), they didn’t accumulate lots of powder. In fact, it was yet one more deficit that they ran up.

  5. maryo2 says:

    “Baseless, partisan allegations that, easily could be investigated and dismissed through voluntary interviews now may have to be investigated through the specter of the grand jury process.”

    Uh, blowjob.

    • BoxTurtle says:


      You know, that cartoon works equally well with a Bush dummy.

      Boxturtle (Bush dummy…is that redundent?)

  6. Stephen says:

    I think there is a force developing in the nation to pin the right person for a lot that has gone wrong and is wrong. I believe it will be Cheney.

  7. Jkat says:

    hmm .. “political prosecutions” .. i s’pose this harkens back to the old “criminalizing policy differences” meme .. eh ?? thing is .. no administration ..nor official thereof ..has any business instituting a policy which violates the known and clear laws of the land .. when “criminal policies” [i.e. policies which blatantly violate known laws] are established disregard of the law .. [or in defiance thereof] ..prosecuting those involved isn’t a political act .. nor is it a political prosecution .. it is a criminal prosecution undertaken to punish violations/violators of known laws ..

    if one does not wish ones “policies” to be criminal-ized .. then one should not establish and implement policies which are in direct violation of known laws ..

    i know that’s far too complex for most right-whingers to comprehend .. but they’re just going to have to learn the basics of civil society and fundamental rule-of-law codicils ..

    [yeah .. i know .. i’m proposing an improbable ..]

  8. alabama says:

    Surely the pressure to bring Cheney to justice is a “tactical move” in the greater “strategic” operation of bringing the whole damned war to justice. Given the complexities of this tactical move, it’s easy to forget the enormity of an unjust war in which untold hundreds of innocent thousands have been killed and injured, untold millions displaced and ruined, an entire civilization driven mindlessly into the ground.

    I’d call it “countrycide”, if the coining weren’t so abysmally lame.

  9. Mary says:

    @15 I dunno – I know that Breuer is talking about getting a “rock star” prosecutor for the fraud cases lining up. Durham doesn’t summon up images of Mick Jagger, but that may not be a bad thing. I just haven’t been overwhelmed to date and I have to admit – I’ve got a very strong bias against anyone still working for a torture regime years after it became clear it was a torture regime, and all without ever disclaiming the, well, torture regime part of the torture regime. And as Fitzgerald himself pointed out, on these inhouse investigations, what you get is a “perception” of independence.

    I guess we’ll see.

    OT – Renzi’s lawyers are now jumping on the “DOJ leaked for political reasons” themselves – it could not get more bizare.

  10. perris says:

    you know what would go very nicely in the torture timeline?

    the time when the Iraqi’s suspected torture, (when they realized we were still using abu graeb) and the time we were no longer welcome as liberators

    I suspect they coincide almost to the week.

    if that’s true that marks the time our policies begin recruiting exponentially insurgents against our cause, our government and our people

    if so, imagine how that would play when a progressive points it out

  11. WTFOver says:

    CIA’s black sites, illuminated

    The facilities were never meant to be ‘ordinary prisons,’ recently released documents reveal in meticulous detail.…..full.story

    The secret overseas “black sites” where the CIA conducted the interrogations are empty now, if not already dismantled. They were never examined by a congressional committee, nor inspected by the international Red Cross.

    “These papers may provide the only picture that history gets of what life was like in these facilities,” said Tom Malinowski, Washington director of Human Rights Watch.

    The black sites not only imprisoned men but reduced them to a near helpless state. The aim, as outlined in one document, was to teach every detainee “to perceive and value his personal welfare, comfort and immediate needs more than the information he is protecting.”

  12. floundericiousMI says:

    Can a federal prosecutor be limited??

    Once this investigation is under way, can the prosecutor actually be held back from pursuing the torture crimes to their fullest extent? How would that be enforced aside from a very messy public removal of the prosecutor?

    • bmaz says:

      Assuming you are talking about Durham, of course he can be removed. He is not an independent prosecutor, and has no independent authority; he appears on the case only as a representative of the Attorney General and even in that capacity has only the authority specifically given him by the Attorney General.

      • floundericiousMI says:

        Thanks bmaz and yes, I was talking about Durham although I couldn’t remember his name (blush)

        How is that authority declared, circumscribed, etc. in writing? I guess my original question was procedural…how his power and jurisdiction is defined…

        Anyways, it was just a stray thought before dinner…wondering if an investigation into CIA excesses that found evidence of agents being pushed by the white house to be aggressive could blow up into a big investigation of the white house

        • bmaz says:

          Oh, it could – If the DOJ leadership, especially Holder, wants it to. But therein lies the question because they have been very consistent in saying they would not do that.

        • R.H. Green says:

          I’ve been toying with a similar thought. Only in my dream, Durham found some data that called for expanding his mandate, took it to Holder who reluctantly agreed that it could be bad if it came out that he quashed the matter there. If Durham made him an offer he couldn’t refuse, Holder had to go to BO and spill the bad news. Thus the limited go ahead and thinking to derail things later. But as you suggest, these things can grow legs if not expertly pruned.

  13. libbyliberal says:

    Glenn Greenwald:

    Speaking of Mike Wallace’s boy, Andrew Sullivan says that, during his interview about torture with Dick Cheney today, he “sounded like a teenage girl interviewing the Jonas Brothers.” Andrew compiles the “questions” Wallace asked of Cheney and it’s hard to describe it any other way. He adds:

    When future historians ask how the United States came not only to practice torture but to celebrate it and treat torturers as heroes, a special place in hell among the journalists who embraced and justified it should be reserved for Chris Wallace.

  14. Styve says:

    I am reading Gellman’s book, “Angler”, and I believe that Stephan (#13) may be onto something… This Cheney scum is going to hell, hopefully with a pit stop in prison first. I don’t believe he would go to jail…he would kill himself first.

    Reminds me of a protest sign I made in 2006…


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