The Taxpayers Paid Dick Cheney’s Personal Defense Attorney to Obstruct Any Inquiries Into His Crimes

Okay, prepare for the onslaught of weeds. Here’s one that made me vomit, from the very beginning of the Cheney interview report.

Vice President Cheney was represented by Terrence O’Donnell and Emmet T. Flood of the law firm of Williams and Connolly…

Cheney was formally represented not only by Terry O’Donnell but also by Emmet Flood. Who, after Pat Fitzgerald noted the cloud over Cheney’s head and just three days after Libby was sentenced to 30 months in jail, got hired by the White House. [updated, h/t MadDog] Who, for the last two years of the Bush Administration, took the lead in preventing Congress or anyone else from getting documents that would implicate Rove or–you guessed it–Dick Cheney.

And Emmet Flood is almost certainly the Deputy who attended the meeting between long-time Cheney colleague Fred Fielding and Scooter Libby, at which Libby made one more bid for a pardon.

[Around January 17 of this year], Libby, who hadn’t previously lobbied on his own behalf, telephoned Bolten’s office. He wanted an audience with Bush to argue his case in person. To Libby, a presidential pardon was a practical as well as symbolic prize: among other things, it would allow him to practice law again. Bolten once more kicked the matter to the lawyers, agreeing to arrange a meeting with Fielding. On Saturday, Jan. 17, with less than 72 hours left in the Bush presidency, Libby and Fielding and a deputy met for lunch at a seafood restaurant three blocks from the White House. Again Libby insisted on his innocence. No one’s memory is perfect, he argued; to convict me for not remembering something precisely was unfair. Fielding kept listening for signs of remorse. But none came. Fielding reported the conversation to Bush.

The day after this interview, Bush had his own personal defense attorney over to the White House to ask whether he should pardon Libby. Libby didn’t get the pardon.

Patrick Fitzgerald made it clear that Dick Cheney was the ultimate target of the CIA Leak Case. And Dick Cheney did the obvious thing any bureaucratic master would do. He put his own personal defense lawyer on the payroll to help obstruct any efforts to expose his role in outing Valerie Plame.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

95 replies
    • fatster says:

      In addition to Caitin’s response @ 18 above, do see EW’s comment @18 (not a typo) on the “Hung Out to Dry” article. Just fast-forward a few to get to it.

  1. MadDog says:

    For folks who need to have Emmet T. Flood’s CV verified:

    Emmet Flood

    Emmet T. Flood was named June 8, 2007, by President George W. Bush to be Deputy Assistant to the President and Special Counsel to the President.[1] in the Office of Counsel.

    • earlofhuntingdon says:

      Technically, if a lawyer is hired as part of the legal staff of the White House Counsel’s office, it’s the presidency as an institution that is his client, not the individual who is president, let alone the Vice President personally.

      Reality and lawyering in DC being what it is, as long as neither the President, the Chief of Staff nor his superiors within the White House Counsel’s office did not object, Flood could consider Cheney his client at taxpayer expense. Cheney would contend that protecting his professional interest (which he would not distinguish from his personal interests) is protecting the president and the presidency. That Cheney separately claimed to be a fourth branch of government was an alternative argument designed to avoid all oversight and limits on his wielding the blindly delegated power of the president.

      • Peterr says:

        Yeah, Cheney would definitely see himself as the personification of the government, thus Flood worked for him. But legally, it could be interesting if someone were to want to interview Flood at this point, when Cheney could not exercise Executive Branch powers to intervene.

        Of course, asking Holder to take a stand against claims of Executive Branch authority seems like a fool’s errand . . .

        • Leen says:

          During Holder’s nomination hearing (I attended) he kept repeating “no one is above the law” Well does he believe this or not?

          Wonder what Valerie and Joe Plame Wilson think about the release of Cheney’s report?

          Just keep remembering what Fitz said
          http://www.editorandpublisher.com/eandp/news/article_display.jsp?vnu_content_id=1001392240


          But what we need to also show the world is that we can also apply the same safeguards to all our citizens, including high officials. Much as they must be bound by the law, they must follow the same rules.

          So I ask everyone involved in this process, anyone who participates in this trial, anyone who covers this trial, anyone sitting home watching these proceedings to follow this process with an American appreciation for our values and our dignity.

          Let’s let the process take place. Let’s take a deep breath and let justice process the system.”

          The peasants are still waiting to witness justice.

  2. earlofhuntingdon says:

    How odd that George Bush’s most important advice on the consequences of pardoning Dick Cheney Scooter Libby should come from his personal criminal defense attorney, and not from the White House Counsel or the AG or his pardon office attorneys. The taxpayer pays for the latter two sets of attorneys because they handle public matters for the presidency and the people of the United States, respectively. Both are ordinarily the primary actors in any pardon decision. Mr. Bush, however, asked someone whose first and only job is to keep George out of jail.

    • JThomason says:

      And communications with the Pres were the only topic that appeared to be clearly off limits in the Cheney interview. Hard to work up that chain.

      • earlofhuntingdon says:

        Exactly. Privilege was Cheney’s greatest privilege. But like exercising delegated powers, Cheney somehow had to include the president in order to enjoy the benefits of his protected status.

  3. JThomason says:

    I am still curious whether Flood or one of his ilk was Waas’s source as a person familiar with the Cheney interview who stated that Cheney had said he had shared all he knew about Plame with Libby. Sorry if I am all wet. Don’t mean to be redundant.

    The Libby-Cheney Connection.

  4. Mary says:

    And the main area (at least of unredacted info) where Cheney refuses to answer questions was his conversations with the President. After Cheney saying that HE did not insta-declassify and HE did not and would not declassify and keep the declassification secret, he refuses to answer questions about whether the President did declassify earlier and keep it secret, etc.

    So now the lawyer there advising Cheney while Cheney is refusing to answer questions on his discussions with the President – is suddenly the President’s lawyer. That’s nifty. (oops, see that this point is already made @6)

  5. Mary says:

    I know EW and I disagree on the NIE some, but I do think the summary indicates a really aggravated and incredulous tone re: the NIE handling by Cheney – there’s some comment to the effect *and he thought that was a perfectly acceptable way to handle NIE information* when discussing Cheney saying he could publically discuss anything he wanted to from classified info, without declassifying, as long as he didn’t reveal “sources and methods”

    I’m trying to wonder where the scenario he describes as being his declassification authority – i.e., where two agencies are arguing about declassification – would kick in. Typically, you would think that the originating agency would get to make the call. Why would another agency get to appeal to him for a different decision? I’m wondering if that was primarily a situation re: the OLC memos, since OLC as originator might well have not “classified” the opinions (remember how the Pentagon memo released had declassification info but no CLASSIFICATION info) and instead they were classified by a non-originating agency (like Pentagon or CIA) Maybe something else makes more sense, I dunno.

    I smiled when I read that, as OVP, he didn’t believe in “criticizing” other agencies bc it wasn’t productive.

    • Peterr says:

      OLC isn’t ever really the originator of their memos. Other offices ask OLC for opinions, and OLC gives it their best shot. Every one of them is a variation on “You requested a legal opinion on . . . and here’s what we have come up with.”

      (Of course, during the Yoo Years, “their best shot” isn’t saying much.)

      • earlofhuntingdon says:

        Well, it should be the originator of the opinion, the legal analysis of what the law permits or prohibits or about which it says nothing, but not of the questions those opinions are used in answering. In Yoo’s case, indeed for the duration of the Cheney presidency, I suspect that David Addington had much to do with writing any opinions that touched on executive authority or the laws that create or limit it.

        Apart from wanting to expand that authority as much as possible, Addington, as a committed Cheneyite, would not have wanted anyone to look too closely at how much of Bush’s authority Cheney wielded, or to hold forth on distinctions between the president’s authority (considerable) and the vice president’s (almost none).

      • Mary says:

        I’d disagree with that. Anyone who has ever claimed attorney work product would, imo, agree that OLC is the originator of their work product. That’s like saying if OVP asks CIA a question, when CIA sends people out to get the info they aren’t originating the info they get.

        • Peterr says:

          My only point is that OLC doesn’t sit there and say “What should we opine on today?” Other agencies say “what is the legal position of the administration on X?” and the OLC drafts a reply.

          Are they responsible for their opinions? Yes.

          But that’s not the same as saying that they offer an opinion on whatever strikes their fancy.

          • Mary says:

            That’s true, they don’t issue opinions in a vacuum. But what I was getting at was their status under the classification and declassification order as the “orignating” agency for their opinions. I think they pretty clearly are the originator. Just like if, say, CIA asks FBI for info and FBI puts together an answer – they are the orignator of their answer materials, even though they didnt’ think up the question themselves.

      • Mary says:

        Was DIA the originator on that info? That sounds like another good possiblity. It makes you wonder how often it happened, doesn’t it?

      • kindGSL says:

        If any reporters had looked into the processing of uranium they would have known that story was bunk. Why didn’t they is really the question.

  6. mattcarmody says:

    Maybe one way of getting all the robots who believe Cheney/Bush did no wrong is to replace the names with Clinton and Gore.

    Remember the firestorm over the Chinese connection when it came to fundraising for Gore? How the GOP and the vast right-wing conspiracy was all up in arms about White House phones and offices being used for fundraising purposes? Substitute Gore’s name for Rove in all the stuff Rove was accused of and all the dittoheads would explode.

  7. Caitin says:

    MysteriousTraveller – How about instead of impugning Fitzgerald and his team put yourself in their shoes. Before you indict and prosecute a sitting Vice President you would want an air tight case. If you are honest with yourself that would have required Libby’s testimony.

    Do I think Rove is a liar? Yes. I also think he was smarter, luckier (thank you Viveca Novak!) and had a better lawyer (way to go Luskin) than Libby.

    Do I think Cheney should have stood trial? Yes but Bush commuting Libby’s sentence ended that scenario and in my opinion no matter what Libby was never testifying against Cheney.

  8. MadDog says:

    Page 24:

    …(U) The Vice President was then provided a document bearing the OVP Bates Stamp number 002518. This document reflected some hand printed talking points on the top half, and the rest of the document contained separate handwritten notes on its lower hald, which the Vice President advised was his handwriting. The Vice President recognized this note from a conversation he had with Scooter Libby after White House press secretary McClellan had issued his September 2003 press statement clearing Rove as Novak’s source. He recalled Libby presented the hand printed talking points to him as a suggested response to the media used by McClellan in an effort to clear Libby of any involvement in the leak. The Vice President, during the interview, read aloud the handwritten portion of the document. The Vice President stated that he could not decipher that part of his own handwritten notes which appeared to have been crossed out. He stated that the crossed out words might have been written as “the Pres.”, however Vice President Cheney advised he could not be certain and, in any event, it had been crossed out…

  9. JasonLeopold says:

    OT but holy crap! even more documents being dumped!

    “The government today handed over to the American Civil Liberties Union numerous documents in response to two ACLU Freedom of Information Act (FOIA) lawsuits for information related to the treatment of detainees in U.S. custody overseas. Thousands of pages of documents detailing the interrogation of prisoners by the FBI, Department of Defense (DOD) and CIA have previously been made public as a result of the lawsuits.”

    • earlofhuntingdon says:

      The Friday ugly document dump: another Bush “tradition” Mr. Obama finds useful enough to make his own.

  10. JasonLeopold says:

    Again, OT

    Among the documents released today are a report from the DOJ’s Office of the Inspector General relating to the involvement of FBI agents in the interrogations in Guantánamo Bay, Afghanistan and Iraq; documents gathered by the DOJ’s Office of the Inspector General in preparing its report and CIA documents relating to interrogations at black sites overseas.

    • Mary says:

      Let’s see – the involvement of the FBI agents at a time when the Abdullah Khadr situation in Canada is getting driblets being released all over and when Bush Obama has just settled with Higazy for the false confession coerced out of him that nearly sent him off to be another piece of the human torture experiments.

      Higazy – told his sister would be picked up for “interrogation” by Egypt, with all the implied threat of her rape and abuse that entailed.

      Khadr, using in part in his fight against extradition the fact that the FBi was threatening his sister with the same:
      http://www.thestar.com/news/world/article/706633–abdullah-khadr-feared-rape-of-sister

      Khadr alleges in an affidavit that during his 14 months in detention, Pakistani officers beat him and penetrated him with a stick and American officials threatened to arrest his sister and have done to her what had been done to him.

      While testifying, the eldest son of the infamous Khadr family became choked up and wiped away tears.

      “(The Americans) told me that if I didn’t confess … they would bring my sister and do terrible things,” Khadr told Crown prosecutor Howard Piafsky.

      An FBI affidavit says the interview team “never threatened to harm or retaliate against Khadr, his sister or any family member if he did not give satisfactory answers.

      “It also never threatened to send Khadr or his sister to any prison in Egypt or Uzbekistan, or suggested, directly or indirectly, that he or his sister would be raped,” says the affidavit, part of which was read by Piafsky.

      And then there were all the instances where the suggestions were made that the CIA impersonated the FBI.

  11. JasonLeopold says:

    another question in the “guidelines” doc “do the techniques violate the decencies of civilized conduct?”

    Seriously, how is it that these war criminals walk free?

  12. emptywheel says:

    Mary

    There are multiple instances of OLC explaining that they don’t own the classification of their own docs. It belongs to whoever asked the question, IIRC.

    • Mary says:

      That’s true with respect to fact given them, but they originate the opinion itself. So a facts section might have classifications if the facts given them were classified by another agency, but they originate their work product. If they’ve argued to the contrary I sure haven’t seen that and would like to, and again, IIRC, there was NO classification authority on the long held opinion they produced for the Pentagon, just the declassification info.

      So apparently someone at Pentagon didn’t ante up that Pentagon was classifying originally for that doc. fwiw.

      • emptywheel says:

        You’re absolutely right abotu the DOD doc–that’s not what I’m arguing. I’m saying that OLC has said the questioner OWNS the classificaiton of the opinion. I think it was testimony from Bradbury to Congress in 2007, among other places.

        • Mary says:

          I’d like to see how they said it, bc it isn’t true, it can’t be. The questioner can orignate classification on fact that they submit to get the opinion, so that there is derivative classification for the parts of the opinion that recite or restate those facts, but the questioner doesn’t have classification authority over the answer. That’s a different work product.

          It also looks like, from what I copied over in 57, that when push came to shove, they were going to rely, not on classification authority of a recipient, but on Exec privilege, to keep from producing. There is a leg on that one, but I don’t buy it on the other argument, that the questioner can “classify” the legal reasoning and case law cites of the DOJ in responding to the questions.

  13. Mary says:

    Be nice to know what that “interrogation of detainees” came from and who was involved in it.

    The end part would answer any questions on whether or not DOJ had disputes that Cheney had to settle regarding the release of memos, though.

    “We expect demands for release of the OLC opinions that have not become public. The Department believes that these opinions should remain confidential. Judge Gonzales and Andrew Card have stated they would support an assertion of executive privilege to protect the documents, if issuance of a subpoena makes such an assertion necessary”

  14. MadDog says:

    This is pretty damning from page 16 of 10/18/2004 CIA Office of Medical Services (OMS) Guidelines on medical and psychological support to detainee rendition, interrogation and detention (29 page PDF):

    [Multiple redacted paragraphs]
    While SERE trainers believe that trainees are unable to maintain psychological resistance to the waterboard, our experience was otherwise. Some subjects unquestionably can withstand a large number of applications, with no immediately discernable cumulative impact beyond their strong aversion to the experience. [The rest of the paragraph of several lines is redacted]

    (My Bold)

    Given that this OMS Guideline document is dated 10/18/04, the OMS “experience” must be referring to those 183 and 83 waterboard “events” that Khalid Sheikh Mohammed and Abu Zubaydah enjoyed so much.

    And “strong aversion” is such a pleasant medical term for the responses to torture.

    • Mary says:

      Or in part they are saying that, since they didn’t get the info they wanted, that must mean the waterboarding didn’t work (as opposed to the subject not having the info) Like all the torture, and like SERE resistance, it would “work best” if the interrogators already know what they are asking about and are only seeking confirmations. Which would be the case in SERE training, but not so much in real life.

      • MadDog says:

        And continuing onto the very next page 17:

        …In our limited experience, extensive sustained use of the waterboard can introduce new risks. Most seriously, for reasons of physical fatigue or psychological resignation, the subject may simply give up, allowing excessive filling of the airways and loss of consciousness…

        So which of the waterboarded detainees (Khalid Sheikh Mohammed, Abu Zubaydah, and Abd al-Rahim al-Nashiri) constructed that “limited experience” of extensive sustained use of the waterboard for the CIA’s Office of Medical Services (OMS)?

        Because, the CIA’s OMS just confirmed in black and white that there were indeed fookin’ serious consequences to waterboarding folks. Because they fookin’ witnessed it!

    • kindGSL says:

      I ran across a post somewhere from a mom complaining about how her son was tortured in the SERE program. I think he committed suicide. They are all sworn to silence ahead of time so none of them ever tell. I think the penalties are severe.

      It makes me sick to think of how many times I saw this ‘training’ program used as a reason or excuse as to why it was OK to water-board accused terrorists.

      It was never OK. Training our guys by water boarding them is nuts. I suspect making them nuts was the point and that wall of propaganda about how great and necessary it was points to media complicity.

      Why is our military so focused on this ‘training’ and what does it have to do with their training of foreign troops? I don’t see that we have a shred of credibility when it comes to ‘training’ after this.

      • solerso68 says:

        I agree. no-one in SERE training was waterboarded 187 times against their will. its absurd rationalization

  15. Mary says:

    OK- looks like this is the Oct 4, 2003 artice from The Guardian that prompted Leahy’s question:

    http://www.guardian.co.uk/uk/2003/oct/04/usa.terrorism

    A British businessman arrested as a suspected terrorist has told the Guardian that US agents threatened him with beatings and rape in an attempt to break him.
    Wahab al-Rawi, 38, was denied a lawyer, held incommunicado for four weeks in Gambia, and repeatedly questioned by CIA agents before being released without charge. His account is the first from any Briton about their treatment by the US while held as a suspect in the two year “war on terror”.

    Could the CIA have been any more obsessed with rape?

    “You know how Africans are, you know what happens in these countries. We can let the Gambians at you'” is lovely. Maybe someone should ask our Kenyan Presidnt how “Africans are” /notquitemakingittosnark.

    • solerso68 says:

      with all due respect to your point, the presidernt isnt “kenyan”. thats one of the really bizzare g.gordon liddy-esque talking points. the president would not acknowledge the irony you wish to point out. also i dont know anything about ghambians but i do know that the whole point of rendition was to threaten prisoners with all kinds of secret torture..ei.., if you dont talk we’ll send you to the saudis (gulp) and if they cant make you we’ll send you to the egyptians (scream)…and so on.

      • bmaz says:

        Yeah, I don’t think Mary was saying Obama is Kenyan; if he was, he would not be President. He is of direct Kenyan heritage by way of his father though, and that was the point. Nobody here is repeating “g.gordon liddy-esque talking points”. And you statement about the purpose of rendition is fairly thin too; there were multiple reasons for it, but using it as a hide the jurisdictional ball scheme is undoubtedly far more the primary purpose than the actual treatment that would be delivered by the third party countries.

        • solerso68 says:

          yes, and because other nations, especially eygypt and saudi arabia could be counted on to inflict more severe, illegal physical torture and were able to hide the bodies (i assume thats what you mean by jurisdictional).

          • bmaz says:

            No, I am saying the US has proven itself quite adept at the worst forms of torture and that we will gladly do it and “bury the bodies” as you say. What I am saying is that it is not that we need the 3rd party countries to do stuff we won’t so much as we are simply using them to hide what is being done.

      • Mary says:

        You don’t have to give “all due respect” to the point. I tried to highlight as clearly and plainly as I could, with “/notquitemakingittosnark” coming right after the comment, that the comment was meant to be hugely sarcastic. Sorry you didn’t get that – I comment here a lot and most “regulars” get that I am very sarcastic on these idiotic things done/said by the torture crew. Now and then someone who doesn’t comment/lurk frequently doesn’t get that sarcasm, so I do try to make it plain on something like the earlier comment.

  16. Mary says:

    Wahab’s brother, Bisher, who was sent on to Bagram and from their to GITMO, until Britain negotiated his release. He’s now one of the Jeppesen plaintiffs – being represented by the ACLU.

  17. NorskeFlamethrower says:

    Firepup Freedom Fighters:

    Where is Obama’s OLC director and why haven’t they pushed to confirm her…it’s been damned near a year?!!

  18. Beerfart Liberal says:

    This is really interesting stuff. My view is there’s as much chance of anything happening to Cheney as of the Jankees losing the World Series. Ain’t gonna happen. No how. No way.

    But, yeah, the people(person?) questioning whether Fitz was “in the bag”……… No. He wasn’t. He’s a good man.

  19. sunshine says:

    If an American was in Canada and had a baby the baby is still American but could also hold duo citizenship of American and Canadian. I think Kenya may works this way also. O’s dad was from Kenya and I think Kenya officials may have said he had citizenship. I read this but don’t know if it is a fact.

  20. SadButTrue says:

    This brings up an interesting question for those of us who are not lawyers. If the federal government paid these lawyers, does that not make the product of their efforts the property of the people? At the very least I should think it would create a potential challenge to any attorney client privilege – if the client is not Cheney, but the US government.

    Any clarifications from those who might know?

  21. iremember54 says:

    We’ll be paying for Cheney long after He’s dead and gone.

    We forget that the Repubicans in the Congress aided and abeded everything they did.

    Soon we’ll be tired of the Dems, and put another Republican Administration in so we can have more of the same.

    Such short memories.

  22. Garrett says:

    The FBI documents have an amusing email exchange around pages 61 to 68.

    FBI GC Valerie Capone asks someone to prepare a timeline about FBI involvement in abuse. In case Congress asks. Which they haven’t yet.

    “Some judgment needs to be used in terms of what should go in,” she says.

    DGC Julie Thomas later says OK your timeline is ready. Since you have recused yourself on the issue, should I send it to Pat?

    Valerie Capone says no, send it to me, I actually need it for myself. It is for when OIG questions me about “my malfeasance, er, involvement.”

    You’d think General Counsel, for the FBI, where she has recused herself, might be a little more circumspect.

Comments are closed.