If the hapless Democratic Congress ever gets around to an investigation through which they can ask Reggie to turn over the CIA Leak case grand jury materials.

But for now, I’d say he’s still cranky, wouldn’t you?

In commuting the defendant’sthirty-month term of incarceration, the President stated that thesentence imposed by this Court was “excessive” and that two years ofsupervised release and a $250,000 alone are a “harsh punishment” for anindividual convicted on multiple counts of perjury, obstruction ofjustice, and making false statements to federal investigators. Althoughit is certainly the President’s prerogative to justify the exercise ofhis constitutional commutation power in whatever manner he chooses (oreven to decline to provide a reason for his actions altogether), theCourt notes that the term of incarceration imposed in this case wasdetermined after a careful consideration of each of the requitestatutory factors, and was consistent with the bottom end of theapplicable sentencing range as properly calculated under the UnitedStats Sentencing Guidelines.

Indeed, onlyrecently the President’s Attorney General called for the passage oflegislation to “restore the binding nature of the sentencing guidelinesso that the bottom of the recommended sentencing range would be aminimum for judges, not merely a suggestion,” a stance that is fullyconsonant with the policies of this Administration as a whole. Inlight of these considerations, and given the indisputable importance of“provid[ing] certainty and fairness in sentencing . . . [and]avoid[ing] unwarranted sentencing disparities,” it is fair to say thatthe Court is somewhat perplexed as to how its sentence could beaccurately be characterized as “excessive.”[my emphasis]

In the meantime, I’m not holding my breath on the hapless Congress.

Let’s pretend, for a second that all the other reasons why the cries of "runaway prosecutor" from the Libby Lobby don’t exist. Set aside the fact that the FBI and then Fitzgerald were investigating all leaks of Valerie Wilson’s identity, not just those to Robert Novak. Set aside the fact that the 1X2X6 story (as well as the clear evidence of at least three leaks by October 12, 2003) didn’t have the FBI looking for more than one leaker.

The claim that Fitzgerald should not have investigated beyond the the day when, on October 1, 2003, Armitage identified himself as the first source to Novak would still be wrong.

That’s because there were clear discrepancies between Armitage’s and Novak’s stories. And Fitzgerald was actively investigating Armitage and Novak at least until September of 2004. The FBI couldn’t close up shop on October 1, 2003, and Fitzgerald didn’t close up shop on December 30, 2003, because it was still trying to determine whether Armitage had leaked Valerie Wilson’s identity to Novak intentionally for at least nine more months.

The newly unsealed portions of the affidavits Fitzgerald wrote in pursuit of Judy Miller’s and Matt Cooper’s testimony make this clear (I’m getting these scanned–I should have links to them in the next day or so). In the Miller affidavit, Fitzgerald lays out some of the discrepancies:

The NYT reports that Sara Taylor will come before the SJC today and testify about some things.

Sara Taylor, the former White House political director, has agreed toanswer some questions as a “willing and cooperative private citizen,”during testimony about the United States attorney firings last yearwhen she appears before the Senate Judiciary Committee later today.

But, as a former presidential adviser, she will also honor thepresident’s invocation of executive privilege to keep quiet about“White House consideration, deliberations, or communications, whetherinternal or external, relating to the possible dismissal or appointmentof United States attorneys,”according to a written copy of her opening statement provided by herlawyer’s office. Those parameters were set forth in a letter to Ms.Taylor’s attorney, W. Neil Eggleston, from the White House counsel,Fred F. Fielding.

Now, seeing as how the defining character of human beings is our ability to communicate, I don’t see how, if Sara Taylor refuses to testify about "communications, whether internal or external," we’re going to get much information. This news seems to support Kagro X’s argument–that they’re trying to muddy the waters about where contempt of Congress starts.

Though the power of the various subspecies of executive privilege to prevent witnesses — especially former WhiteHouse officials — from testifying is highly questionable, it’s worthnoting that the speculation about whether or not they’ll be held incontempt of Congress if they cite the privilege in refusing to answercertain questions (or even testify at all) has so far bypassed thequestion of what, exactly, constitutes contempt in the first place.

But we might not even have to answer that question directly — if there really is ananswer at all. Instead, ask yourself what happens if  these witnessesand others similarly situated come to the committees with the intent ofmaking them actually prove they were in contempt. Though contempt (forall its faults, at least under the statutory contempt process) is theobvious threat here, what if the witnesses simply show up, say wordswhen they’re asked questions, and then deny that they were talkinggibberish?

And speaking of muddying the waters–based on a pretty muddy letter from the White House, the RNC says that Congress can’t have its emails on the USA firings, either. I’ll return to this letter later–but I think BushCO is layering unsupportable claim on top of unsupportable claim. But heck, since the Dems in Congress didn’t try to knock the first false claims down, I’m not surprised the WH continues to get away with it.

I have a feeling it’s going to be a frustrating day, all around.

Now that I’m in DC, I’m thinking maybe I’ll just stay here until the impeachment. Because things are getting fun. As in, no more taxpayer dollars to help Cheney shred our Constitution.

Senate Democrats movedTuesday to cut off funding for Vice President Dick Cheney’s office in acontinuing battle over whether he must comply with national securitydisclosure rules.

A Senateappropriations panel chaired by Sen. Richard Durbin, D-Ill., refused tofund $4.8 million in the vice president’s budget until Cheney’s officecomplies with parts of an executive order governing its handling ofclassified information.

At issueis a requirement that executive branch offices provide data on how muchmaterial they classify and declassify. That information is to beprovided to the Information Security Oversight Office at The NationalArchives.

Tomorrow at 10 Sara Taylor will say, over and over, "I can’t reveal that," because it is protected by Executive Privilege (not sure I can make this hearing–we shall see). Then at noon, it’s time for Victor Rita’s lawyer to explain about how SCOTUS thinks 33 months for perjury is reasonable. And then the following day, it’s Miers’ turn to repeat, "I can’t reveal that," over and over again.

And all the while Cheney will be wondering how he can fund his ongoing plan to shred our Constitution.

So says Pete Domenici, when asked by Andrea Mitchell whether he would testify before Congress if asked. ThinkProgress points out that a conversation between Rove and Domenici closely preceded David Iglesias’ firing. But I’ll go further, and raise this report.

In the spring of 2006, Domenici told Gonzales he wanted Iglesias out.

Gonzales refused. He told Domenici he would fire Iglesias only on orders from the president.

At some point after the election last Nov. 6, Domenici called Bush’ssenior political adviser, Karl Rove, and told him he wanted Iglesiasout and asked Rove to take his request directly to the president.

Domenici and Bush subsequently had a telephone conversation about the issue.

The conversation between Bush and Domenici occurred sometime after theelection but before the firings of Iglesias and six other U.S.attorneys were announced on Dec. 7.

Iglesias’ name first showed up on a Nov. 15 list of federal prosecutorswho would be asked to resign. It was not on a similar list prepared inOctober.

Lucky for Domenici that Andrea Mitchell is a beltway-sucking simp. Because rather than say, "In fact, Senator Domenici, you apparently do know about it–and your conversation with Bush is the one thing that most implicates executive privilege in this case,  as it is the one report of Bush intervening personally to fire a USA." Mitchell just said, "oh, okay. You don’t want to talk about it. Okay then."

Your Fourth Estate, hard at work.

As I’ve explained before, I used to consult for a big automotive company, working primarily in Asia (the job got moved to Asia earlier this year). I flew several times a year to Asia. So for the past several years, I’ve been an "Elite Level" flyer for Northwest. Which means I get bumped up to First Class pretty consistently.

Back in February, during my first trip home from the Libby trial, I ran into an attractive (in a frat boy way) but too-heavy man sitting across the aisle from me in First Class. He seemed to be as interested that I was reading Lawrence Walsh’s Firewall (on Iran-Contra) as I was in reading his folders full of "articles from Staffers" on "Islamists." It was even more fun when I got out my computer and started doing a blog post on the trial. After all, Mike Rogers (whom I lated recognized this to be) had been challenged in ’06 by Jim Marcinkowski, one of Valerie Wilson’s friends from her CIA cohort.

It happened again, today. I was sitting in the first row of the plane. The nice gentlemanly man on the aisle was already there–I ended up shoving his briefcase to the side so I could fit my bloggy laptop-sack next to his Congressional bag. He said he wanted to get to his bag during the flight, so we rearranged nicely. And then I sat down. As the other passengers came in, I heard someone say "hi" to the Congressman. At which point I started kicking myself for not knowing the Republican Congressman from MI by face (apparently, only the Republicans are still taking 2.5 day weeks–I’ve only ever seen Mrs. Dingell in my middle-of-the-week flights, not any Democratic Congressmen). The Congressman got pretty attentive to what I was doing (and today, I actually looked like a DFH blogger), particularly once I pulled out The Wrong Stuff–the book on Duke Cunningham I’m hosting FDL book salon for on Sunday. Luckily, the flight attendant was very superb at his job, and he called us both by name as he asked us for our drink orders (I had white wine, and "Mr. Knollenberg" had a half-glass of water, no ice.), so I could figure out who I was sitting next to. Meanwhile, I think Knollenberg decided not to pull out his KoolAid Republican work to review on the flight. While he may already know everything bad about Duke Cunningham, his former colleague, I’m sure we don’t know everything about Joe Knollenberg.

Anyway, sorry for the completely random post. If you care, Knollenberg likes peanuts, but not pretzels or chips. And he doesn’t like to drink a lot of water on plane rides. And he’s kind of fussy about little pieces of trash floating around in his space–though that may have been exacerbated by the fact that he had to sit next to a DFH blogger reading (and taking extensive notes) a book on Republican corruption. Though I should say, he was very polite (as was Mike Rogers) and pulled my bag down from the overhead.

I’m sure I was having a lot more fun with the experience than he was, anyway. There’s something to be said for making a Republican Congressman’s flight back to DC a little more stressful by attentively studying Republican corruption while sitting right next to him in First Class.

[Editorial note: this was blogged using Jane’s new network card, which means we should be liveblogging in real time from the Conyers hearing tomorrow.]

I’ve got just a few minutes before I’ve got to pack up for DC. But I wanted to point out a curious detail about the WaPo’s story on NSLs: the centrality of PFIAB in it. The story, of course, reveals that Gonzales received reports of violations of National Security Letter procedures, and then went into Congress and said there had been no problems with the program. But in addition to Gonzales, the board that’s supposed to police our intelligence activities also received reports of the violations.

Each of the violations cited in the reports copied to Gonzales wasserious enough to require notification of the President’s IntelligenceOversight Board, which helps police the government’s surveillanceactivities. The format of each memo was similar, and none minced words.

"Thisenclosure sets forth details of investigative activity which the FBIhas determined was conducted contrary to the attorney general’sguidelines for FBI National Security Investigations and ForeignIntelligence Collection and/or laws, executive orders and presidentialdirectives," said the April 21, 2005, letter to the IntelligenceOversight Board.

The oversight board, staffed with intelligenceexperts from inside and outside government, was established to reportto the attorney general and president about civil liberties abuses orintelligence lapses. But Roehrkasse said the fact that a violation isreported to the board "does not mean that a USA Patriot violationexists or that an individual’s civil liberties have been abused." [my emphasis]

Two things about this. First, I suspect we’re going to hear some folks in the upcoming days disputing Roehrkasse’s claim that a report to the Board doesn’t mean that a violation of civil liberties has occurred (in fact, I rather think Roehrkasse is parsing carefully in that statement there). Time was, when something got elevated to the Board, it was serious. So if AGAG is ignoring such reports, it means he’s ignoring real evidence of wrongdoing.

Second, the Intelligence Oversight Board is different from the President’s Foreign Intelligence Advisory Board. But Presidents tie them closer together as they choose to–and I’ve heard that Bush may have tied them quiet closely indeed. Which reminds me of this post that I did a few weeks ago that pointed out that the only entity that, like Cheney’s Fourth Branch, was not complying with classification and declassification guidelines was PFIAB. I wonder whether IOB has done it’s part to bury evidence that citizens should know?

HJC has announced the list of witnesses for Wednesday’s hearing on Libby’s get-out-of-jail-free. They are:

• Joe Wilson: You guys know him, I think. I suspect he’ll talk about how Bush and Cheney are involved in this case.
• Roger Adams, US DOJ Pardon Attorney. He’ll end up talking about the normal process for commutation. Hopefully, some smart Congressperson will ask him about the measures Congress put into place to prevent bogus insta-commutations after the Clinton pardons.
• Douglas Berman, Fancy Law Professor, who also blogs at Sentencing Law and Policy. Presumably he’ll explain about how Libby had a light sentence within the guidelines and probably about how Libby’s sentence may be used by defense lawyers in the future to argue for leniency.
• Tom Cochran, Vincent Victor [thanks nolo] Rita’s lawyer. This is great theater. Rita, of course, just lost a SCOTUS challenge on the appropriateness of his 33 month sentence. SCOTUS said 33 months sounded about right for a guy convicted of perjury. I’m sure Cochran will have a lot to say about how his client’s bid to have his sentence lowered because he’s a long-term serviceman didn’t work. I guess he doesn’t have the goods on the Vice President, though.
• David Rivkin. Rivkin is the designated Victoria Toensing of this hearing. He will tell you about how Fitzgerald was a runaway prosecutor. Damn, I wish I were testifying…

Credit where it’s due. Tom Maguire hits all the right notes about this Novak book excerpt, save one. He notes that Novak’s story has a way of changing with the seasons.

Interesting.  This old post has the Novak version before he was willing to name Armitage; here is Novak (post-"Hubris") rebutting Armitage’s version.

There are subtle shifts in the story – now we are told that "Hementioned her first name, Valerie", a detail not presented earlier.

I love the way righties note how changeable Novak’s story is–yet they always seem to fall for his most ridiculous lines. Like about how, when he referred to Valerie Plame as a covert Agent, he really meant she was running a Congressional campaign in Wyoming (no really–he did say that once–you think he’s got former Congressmen from Wyoming on his mind)?

Oh wait. This is a credit where it’s due post. Sorry. Maguire also points out that Novak’s cover story about Fran Townsend is changing too.

OK, we have had that before – the prevailing version as told by Murray Waas has been that the Townsend column came out on July 10;Rove defended her to Novak at length on the 8th or 9th, and then Novakslipped in a question about Wilson’s wife and Karl responded with "Iheard that, too".

But now Novak tells us that the Townsend column was written on July7.  Hmm – in that case, what did he and Karl find to talk about on July8 or 9?  Or had Rove "heard that, too" in a chat with Novak on the 7theven before Novak met with Armitage?

Well done, Maguire. Posts like these are why you’re a respectable Plameologist.

But Maguire misses one point. A big one. An awfully big one. You see, Novak says he was reporting on Townsend on July 7, before (Maguire accepts Novak here) he called Rove. Maguire points out how that may or may not challenge Novak’s cover story about calling Rove to talk about Townsend. But he doesn’t do the obvious–like asking who, if not Rove, Novak was talking to about Townsend on July 7. I’ll remind you of this passage in Murray Waas’ story on this issue (which Maguire links but apparently doesn’t re-read that closely).

The senior staff in the Office of the Vice President adamantly opposedTownsend’s appointment. The staff included two of Cheney’s closestaides: Libby, then the chief of staff and national security adviser tothe vice president; and David Addington, who at the time was Cheney’scounsel but who has since succeeded Libby as chief of staff.

Among other things, Libby and Addington believed that Townsendwould bring a more traditional approach to combating terrorism, andfeared she would not sign on to, indeed might even oppose, the OVP’spolicy of advocating the use of aggressive and controversial toolsagainst terror suspects. One of those techniques is known as"extraordinary rendition," in which terror suspects are taken toforeign countries, where they can be interrogated without the samelegal and human-rights protections afforded to those in U.S. custody,including the protection from torture.

Libby’s opposition to Townsend was so intense that he asked atleast two other people in the White House to obtain her personnelrecords. [my emphasis]

Now who do you think Novak might have been talking to on July 7? Who do you think might have seeded the Townsend story that she was a Democrat and shouldn’t be hired? Golly. I can’t even begin to guess. And mind you, Novak would have to have been talking to someone intimately involved in the 16 words controversy, because that’s why he brings this up in the first place. And according to his (changing) testimony, the 16 words was precisely what he spoke to Libby about.

Good thing we know that Libby and Novak would have been forthcoming about it if they had had a meeting on July 7, huh?

Two more nitpicky points. First, I’ll reiterate my point that if Novak initiated his question to Armitage by saying, "Joe Wilson never worked at the CIA," it still raises the question of why he believed that, when Wilson’s resume (or Who’s Who entry, since Novak claims to be a fan) wouldn’t be enough to make that claim. He wouldn’t know that, definitively, unless someone with clearance had told him.

And lastly, this is, necessarily, unmitigated bullshit.

When I went to my office Monday, July 7, 2003, Joe Wilson was not in the forefront of my mind. Frances Fragos Townsend was.

The reason this is clearly bullshit is because Novak is simultaneously (at least as of February) arguing that the reason he called Wilson an "asshole" to Wilson’s friend on July 8 is because he was so pissed at how rude (ha! some fierce pot-calling here) Wilson was on Meet the Press, on July 6. Novak has basically argued (for the sake of pretending he didn’t speak to someone before he spoke to Armitage) that he was obsessed with what an asshole Wilson was from the time Novak ran into him in the Green Room to the time he ran into Wilson’s friend on the street. That is, he was fuming about that asshole Joe Wilson from July 6 to July 8.

Which is it, Novak? Were you fuming for two days straight? Or did you speak to someone on July 7–someone who wanted Townsend fired, like Scooter Libby–who told you Wilson was an asshole?

Fitzgerald’s filing in response to Judge Walton’s request for clarification on Libby’s magical disappearing prison sentence has the feel of bitter duty. Much of it is an attempt to stave off any attempt by Libby’s lawyers to disappear even the supervised release.

As discussed more fully below, it is the government’s position that the supervised release term remains operative, and that, by effect of the commutation, the supervised release term began on July 2, 2007.

It offers three different reasons why Libby should be unable to bid to have the supervised release vacated.

Still, it is not without its snark. It repeats what Fitzgerald said in his statement–that Libby actually got a light sentence.

The Court sentenced the defendant to imprisonment on each of the counts, and the total sentence of imprisonment, 30 months, was at the low-end of the applicable Sentencing Guidelines range. [my emphasis]

And it goes to some length to demonstrate that this kind of commutation has almost never happened before. As in, once.

Before setting forth the specific grounds for its position, the government acknowledges the absence of case law authority that directly addresses whether a term of supervised release may follow a commutation of a term of imprisonment where no actual imprisonment has been served. The government is aware of only one other instance since the passage of the Sentencing Reform Act of 1984 of a ‘prospective’ commutation, that is, where no imprisonment term was actually served, and no case law analysis arose from that other commutation.

And it explains US Code, "not surprisingly," doesn’t account for the kind of commutation Libby received.

Section 3583(e) sets forth the circumstances permitting termination, extension, modification, or revocation of supervised release, and not suprisingly, § 3583(e) contains no provision for vacating a lawfully-imposed term of supervised release because a Presidential commutation deemed the sentence of imprisonment to be “expire[d].”

After all, Libby didn’t do the same things others had to to get their sentence commuted.

Although defendant Libby apparently did not submit a “petition[] for mercy,” the holding of Schick should still apply here: the defendant has readily accepted the “full benefit of a lesser punishment,” and thus it is appropriate that he still meet the much lesser burdens of the sentence he now faces.

The filing makes me more bitter than I was even last Monday. That’s what we’ve come to–arguing diligently to sustain the scrap of punishment Libby still has.