John Conyers has been busy. In addition to drafting bills to improve FISA and PATRIOT (more on that later), he has introduced three more bills that would improve Congressional Oversight of the Executive.

The Department of Justice Inspector General Authority Improvement Act of 2009

This Act will authorize the Department of Justice Inspector General to investigate attorney misconduct within the Department of Justice. Under current law, all allegations of wrongdoing by the Department of Justice attorneys are required to be investigated by the by the department’s Office of Professional Responsibility, rather than the Inspector General. In contrast with the statutorily independent Inspector General, the Office of Professional Responsibility is supervised by the Attorney General.

This limitation on authority does not exist for any other agency Inspector General. The Department of Justice Inspector General Authority Improvement Act of 2009 will make the authority of the Department of Justice Inspector General consistent with that of all other agencies and will prevent future abuses and politicization within the Department.

DOJ’s Inspector General, Glenn Fine, has been pushing for this authority for some time (and not just because it would give him more authority). It fixes two problems that exist right now–one, that lawyers in DOJ are not held legally responsible in the same way as others might be, because they escape IG oversight (and often benefit from quiet settlements on complaints handled by OPR). And, more importantly, the current situation (in which OPR–which reports to the Attorney General–conducts investigations of lawyers) makes it almost impossible to investigate the actions of the Attorney General or his close allies. Alberto Gonzales was able to put off investigations into the US Attorney scandal for some time this way.

The Inspector General Authority Improvement Act of 2009

This Act will provide the Inspectors General of the various agencies the authority to issue subpoenas for the testimony of former employees or contractors as part of certain investigations. Under current law, a critical witness can avoid being interviewed by an Inspector General, and thus seriously impede an investigation, by simply resigning from the agency.

The bill contains important limitations on an Inspector General’s subpoena power in order to prevent abuse or damage to ongoing investigations.  Most prominently, an Inspector General cannot issue a subpoena if the Department of Justice concludes in a particular case that the taking of a deposition would interfere with civil or criminal litigation.

Again, this seems like a response to the Bush scandals–not least the way some of the culprits in the US Attorney scandal refused to cooperate with Glenn Fine (or the way John Ashcroft has refused cooperation with all torture and illegal wiretapping IG investigations).

The Disclosure of Presidential Declassification of Intelligence Information Act of 2009

The bill will require the President to inform, within 15 days, the relevant congressional committees whenever intelligence has been declassified. The bill also expresses the Sense of Congress that additional notice should be provided to the Director of National Intelligence, the Archivist of the United States, and the heads of the applicable elements of the intelligence community.

I will follow up on this one to see what the logic behind it is. But for the moment, I’m going to call it the Valerie Plame Insta-Declassification Bill. After all, if Dick Cheney George Bush had been required to reveal whether he had insta-declassified her identity within 15 days, it would have made it very clear whether Cheney’s order to Libby to leak it was nominally legal or whether Cheney and Libby violated the IIPA. But this law would have also made it harder for Bush to warmonger on Iraq, since every time they insta-declassified info to leak to Judy Judy Judy, they would have had to admit that fact.

Frankly, I expect both Republicans, the Administration, and some Democrats to balk at this bill. But we might have fun in the interim.

As I reported, Judge Emmet Sullivan has issued his ruling in the Dick Cheney interview FOIA, ruling partly for and partly against CREW. Sullivan has ordered DOJ to turn over the documents in question by October 9. He has directed DOJ to redact the information exempted in two earlier filings. So, as I suggested, we’ll get some new information. But we won’t learn how Cheney answered when asked whether Bush authorized him to leak classified information (which ended up including Valerie Wilson’s identity).

Here’s some more detail on what the ruling means.

A Rebuke to Obama’s Executive Power Grab

While Judge Sullivan accepted all of Ralph DiMaio and David Barron’s specific exemptions based on national security or deliberative grounds, he rejected the laughable DOJ argument that releasing Cheney’s interview materials would dissuade other high level White House officials from cooperating in investigations. That’s important, because it rejects a theory that would shield a great deal of information on White House criminality. Here’s Sullivan’s description of everything that would be shielded under such a theory.

In this sense, the category of proceedings that DOJ asks this Court to conclude are “reasonably anticipated” could encompass any law enforcement investigation during which law enforcement might wish to interview senior White House officials. Such proceedings might include an investigation into alleged criminal activity that physically took place in the White House; financial wrongdoing by a White House official that took place before or during his or her tenure in the executive branch; misconduct relating to official responsibilities, such as the breach of national security protocol that formed the basis of the Plame investigation; or even an event occurring outside the White House with only tangential connection to one or more White House officials. Thus conceived, it becomes clear that the scope of the proceedings described by DOJ is breathtakingly broad.

I’m guessing, but unless the parts of Cheney’s interview Sullivan has ordered to be released are a lot more scandalous than I think they are, I don’t think Obama’s DOJ will appeal this because it’s unlikely the Appeals Court will agree with them, and as we’ve seen, Obama’s Administration tends to go to great lengths to avoid letting Appeals Courts issue rulings in relatively unimportant cases that reign in executive power. 

Continued Shielding of the Most Important Information in Cheney’s Interview

As I’ve said, Judge Sullivan did accept all the national security and deliberative exemptions that DOJ and CIA invoked. Here’s a list of what that includes, and here’s my more detailed description of how Cheney probably responded.

• Vice President’s discussion of the substance of a conversation he had with the Director of the CIA concerning the decision to send Ambassador Wilson on a fact-finding mission to Niger in 2002.
• Vice President’s discussion of his requests for information from the CIA relating to reported efforts by Iraqi officials to purchase uranium from Niger.
• Vice President’s recollection of the substance of his discussions with the National Security Advisor while she was on a trip to Africa.
• Vice President’s description of government deliberations, including discussions between the Vice President and the Deputy National Security Advisor, in preparation of a statement by the Director of CIA regarding the accuracy of a statement in the President’s 2003 State of the Union Address.
• Vice President’s recollection of discussions with Lewis Libby, the White House Communications Director, and the White House Chief of Staff regarding the appropriate response to media inquiries about the source of the disclosure of Valerie Plame Wilson’s identity as a CIA employee.
• Vice President’s description of his role in resolving disputes about whether to declassify certain information.
• Vice President’s description of government deliberations involving senior officials regarding whether to declassify portions of the October 2002 National Intelligence Estimate.
• Description of a confidential conversation between the Vice President and the President, and description of an apparent communication between the Vice President and the President. 
• Names of non-governmental third-parties and details of their extraneous interactions with the Vice President.
• Name of a CIA briefer.
• Names of FBI agents.
• Names of foreign government and liaison services.
• The name of a covert CIA employee.
• The methods CIA uses to assess and evaluate intelligence and inform policy makers.

Assuming DOJ does responds to Sullivan’s order, I expect them to withhold significant parts of pages 2, 3, 6, 7, 9, 12, 14, 15, 16, 17, 23, 25, and 26. Which means we’ll get roughly 15 pages out of 28, plus fragments of the remaining 13 pages. Not bad, but as you can tell, the most interesting information will be withheld.

Interestingly, Sullivan sort of confirmed a claim DOJ had made earlier: in spite of the fact that we know a great deal about this information already, some of it does not identically match what we already know.

First, a review of CREW’s declaration and attachments in conjunction with DOJ’s in camera submission demonstrates that none of the withheld records has been publicly released; nor has information identical to the information contained in those documents been made public. More fundamentally, however, CREW’s argument ignores the purpose of the deliberative process privilege, which is designed to protect the decision making process itself. Regardless of whether certain factual information is publicly available, the information in the withheld documents is protected precisely because it might compromise what information was considered and what role it played in the deliberative process. [my emphasis]

Though Sullivan’s statement is weaker than the claim DOJ made, this does suggest that Cheney’s story didn’t entirely match the story released publicly at trial.

A Potential to Demand the Information O’Donnell Already Requested??

Now, Sullivan pretty much blew away CREW’s argument that Cheney had effectively waived any privilege when he acceded to the interview with Pat Fitzgerald.  But I’m curious whether Sullivan’s interpretation of the case that both CREW and DOJ relied on on this issue leaves room to argue that Cheney did waive privilege by having his lawyer leak information about his interview to Michael Isikoff. Here’s what Sullivan had to say about the waiver argument.

Contrary to CREW’s suggestion, the court in In re Sealed Case did not create a per se rule that a disclosure to any third party constitutes a waiver of any and all privilege claims. Rather, the court simply concluded based on the facts in that case that the deliberative process privilege could not be asserted as to documents that had already been revealed to the public and to a private, non-government attorney. The present case, by contrast, involves the disclosure of information gained by Vice President Cheney in his official capacity and disclosed to Fitzgerald the Special Counsel in his official capacity as a law enforcement officer. In re Sealed Case, quite simply, does not address the issue before the Court – whether the information given by Vice President Cheney to constituted a protected inter-agency communication or a public disclosure to a third party.

In other words, Sullivan argues that Fitzgerald does not count as a third party.

Now, as I’ve noted before, we know that Cheney’s lawyer, Terry O’Donnell, leaked a key part of the information over which Barron invoked the deliberative privilege–whether or not Bush declassified information for Cheney to leak. Here’s what O’Donnell leaked to Michael Isikoff.

… the "president declassified the information and authorized and directed the vice president to get it out." But Bush "didn’t get into how it would be done. He was not involved in selecting Scooter Libby or Judy Miller." Bush made the decision to put out the NIE material in late June,

Michael Isikoff is, by anyone’s definition, a third party. And so it seems as if Sullivan might buy the "waiver" argument with regards to this information.

And that’s some of the most critical information in Cheney’s interview.

Judge Sullivan has rejected DOJ’s most expansive claims they used to try to protect Dick Cheney’s CIA Leak case interview.

I am reading this now for more detail, but the key graph is this one.

For the reasons stated above, the Court concludes that the agency has met its burden of demonstrating that certain limited information was appropriately withheld from disclosure to protect the well-recognized deliberative process and presidential communications privileges under Exemption 5, personal privacy under Exemptions 6 and 7(C), and national security interests under Exemptions 1 and 3. The Court cannot, however, permit the government to withhold the records in their entirety under Exemption 7(A) on the basis that disclosure might interfere with some unidentifiable and unspecified future law enforcement proceedings. The purpose of Exemption 7(A) is to protect specific ongoing or reasonably anticipated law enforcement proceedings. There are no such proceedings at issue here. Neither congressional intent nor well-established precedent supports the application of the exemption under the circumstances in this case, and the Court declines the government’s invitation to create a new, per se FOIA exemption for any and all law enforcement interviews involving high level White House officials. Accordingly, the Court GRANTS IN PART AND DENIES IN PART the parties’ cross-motions for summary judgment. An appropriate Order accompanies this
Memorandum Opinion.

I suspect this will still shield the key information about whether or not Bush authorized Cheney to leak classified information–up to and including Plame’s identity. 

I’ll confirm that after I’ve read more carefully.

Update: Here’s Sullivan’s order. He’s ordering DOJ to turn over a redacted document by October 9. It seems that Sullivan has permitted DOJ to shield everything listed under the CIA and DOJ declarations, which will shield whether or not Bush explicitly authorized Shooter and Scooter to go leaking classified information to shut Joe Wilson up.

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.

Far and away, here’s my favorite exchange in the Cheney interview:

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.

Wallace asks Cheney if he will speak with Durham, if asked. Cheney does not say yes. Instead, PapaDick immediately suggests he won’t cooperate with an investigation he deems as improper. 

He then takes a tack Karl Rove took in the US Attorney firings: claiming that his many public statements on the issue could substitute for an interview (or better yet, a grand jury appearance) about what role OVP had in establishing our torture regime. 

Cheney hides an obvious unwillingness to commit to cooperating with Durham behind his purported "forthrightness" about torture in the past.

Now, I’ll say more on this tomorrow in regards to DOJ’s ongoing claims that they need to suppress Cheney’s CIA Leak interview so high level White House officials will cooperate in the future. But for now, know that Cheney is already laying the groundwork to refuse to cooperate with Durham based on some claim that the investigation is improper.

 You think maybe someone should tell Republicans that the guy who outed and then called Valerie Plame "Fair Game" is not their most credible person to sow pout-rage over the appointment of a special prosecutor to investigate torture?

Several weeks ago, I asked whether Lanny Breuer had a conflict in CREW’s FOIA suit to get Cheney’s interview in the CIA Leak Case. As I reported, Breuer represented John Kiriakou, who back in 2003 responded to Cheney’s request for information on Joe Wilson’s trip during the week when Cheney learned (from the CIA, Libby testified) of Plame’s identity. Given that two of the things DOJ is trying to protect by refusing CREW’s FOIA pertain to Cheney’s discussions with CIA, it seemed wholly inappropriate, if not an ethical violation, for Breuer to represent DOJ in its efforts to withhold Cheney’s interview.

After some persistence, I got DOJ to respond to my questions about the issue.

The two year window

Just about the only thing the Criminal Division spokesperson could tell me is that Breuer’s submission of an affidavit was not a conflict because it was submitted more than two years after his relationship with Kiriakou ended (the federal guidelines now prohibit lawyers from involvement in an issue pertaining a client they have represented in the last two years).

Before I get into what else DOJ did not tell me (or Covington & Burling, after equally persistent efforts), let’s note the timing.

As I note in a post subtitled "more than 2 years," the DOJ was making this argument almost exactly two years after Bush commuted Libby’s sentence. In fact, Breuer’s declaration was signed on the last day of the two year anniversary of Libby’s commutation (Libby’s sentence was commuted on July 2, 2007, and Breuer signed the declaration on July 1, 2009, just meeting a deadline set by Judge Emmet Sullivan). So the timing is all very close to the "end" of the Libby matter (the trial, obviously, ended much earlier, Libby dropped his appeal later). So, two years, but not much more than two years.

That’s all pretty neat timing, particularly since DOJ would not tell me the precise dates of Breuer’s representation of Kiriakou. They told me to talk to Covington & Burling, which I had already done and have done since. Covington & Burling’s spokesperson claimed–utterly implausibly–that she "hasn’t been able to find anything on that yet."

Breuer’s suitability to submit this declaration

I asked DOJ two more general questions: Whether Breuer had told the people in the Civil Division on behalf of whom he submitted this declaration that he had represented someone involved in the CIA Leak Case. And why, of all the people at DOJ who don’t have known involvement with someone involved in this case, why they picked someone who did to submit this declaration.

To the question about whether Breuer had revealed to others within DOJ that he had represented someone in this case, I got an answer familiar from the CIA Leak case itself: that they couldn’t answer anything regarding an ongoing legal matter. 

And to the question about why DOJ had Breuer, of all people, submit this declaration, I was invited to look at the existing court filings and public record to see why Breuer was qualified for this.

Perhaps CREW said it best when it summarized Breuer’s appropriateness for this declaration.

Mr. Breuer does not claim to have any relevant law enforcement experience, and certainly does not purport to base his opinions upon any such experience.

[snip]

The only experience plaintiff is aware of Mr. Breuer having with law enforcement investigations involving the White House is his tenure as special counsel to President Clinton during the Independent Counsel’s “Whitewater” investigation. Mr. Breuer “appeared before the grand jury . . . and invoked Executive Privilege,” a claim that was rejected by Chief Judge Johnson and that the Independent Counsel described as “interposed to prevent the grand jury from gathering relevant information.”

Yes, Breuer was once an Assistant DA, yes, Breuer co-ran Covington & Burling’s white collar defense, and yes, Breuer worked in Clinton’s White House Counsel office. But how does that give him experience on prosecuting (as opposed to protecting) high level White House officials? DOJ seems to–literally–be making the argument that its job is protecting the White House institutionally.

So we’re to believe that a guy whose most direct experience pertaining to this issue was an unsuccessful attempt to suppress testimony and representing someone in this very case was the very best guy at DOJ they could come up with to make their argument to Judge Sullivan.

Breuer’s ethical conflict (?)

All of which gets us into the larger question: does Breuer have an ethical duty to recuse himself from this matter or–barring that–reveal his past involvement in it?

Which is how I came to be reading the DC Bar rules this morning. Those state:

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent.

Now, there’s a lot more in the rules (and I appreciate the input from those of you who are lawyers, particularly if you’re in DC). But what Breuer has to be maintaining in participating in what I think easily qualifies as a "substantially related matter" is that the interest of the government in suppressing Cheney’s interview is not materially adverse to Kiriakou’s interest and/or Kiriakou has given consent for Breuer to submit this declaration (the rules also state that a government lawyer’s client is the agency for which he works).

So DOJ, deciding that it is in their interest to suppress Cheney’s interview, has trotted out a guy who represented someone at the CIA who may not want Cheney’s interview to come out. And on that basis, Breuer has made assertions to the Court purporting to be neutral observations about the dire consequences of the release of Cheney’s interview.

And that, ladies and gentlemen, is the approach taken by the purportedly FOIA-friendly Obama Administration.

I’m still working on follow-up of this. I’ll let you know what I learn.

I tried to say nothing when news of Novak’s announcement came. I had nothing good to say, though my own father died of brain cancer and I empathize with Novak and his family for that–it is a horrible way to die, particularly for someone whose identity was tied with his intellect.

But I couldn’t resist a snark on twitter: 

Cue Woodward claiming he got deathbed confession about what really happened during the 7/9/03 conversation Novak & Libby hid.

Perhaps Woodward will–as he did with Reagan’s CIA Director and Iran-Contra co-conspirator, Bill Casey, who also died of brain cancer–make dubious claims about deathbed conversations with Novak.

But the fact is that Novak died with most of his role in the Plame outing still shrouded in secrecy. That’s partly true because of the significant changes in Novak’s story over time. All of the following Novak claims changed as the stage of the investigation suited:

• Whether he understood the leak was intended to seed a story or it was an offhand remark
• From whom he learned the name "Plame," changing from "they" (his sources, then in the plural, not "two"), to possibly Who’s Who, to definitely Who’s Who
• From whom he learned that Valerie Wilson worked in counterproliferation and whether that person made it clear this meant she was covert
• His use of the word "operative" and whether he really confused Valerie Wilson with someone running a congressional campaign in Wyoming (really! he claimed to have–and other journalists bought it!) 
• From whom he learned that Joe Wilson had learned that an "Iraqi delegation had tried to establish commercial contacts"–a detail that was in the CIA report on Wilson’s trip (which remained classified until after Novak spoke to his claimed sources for the story), though Novak used the wrong date for it
• When he spoke to Rove–which changed from July 9 to maybe July 8 or 9

On all those details, Novak’s story changed repeatedly. And then there’s one I’ve never heard anyone ask: from whom Novak got the talking point, "The White House, the State Department and the Pentagon, and not just Vice President Cheney, asked the CIA to look into it," a talking point that shows up in Libby’s note from Cheney on Plame’s identity and may appear in Judy Miller’s notes.

Yet today, most journalists assume Novak’s final answers–the ones that eventually shielded Rove and Libby and Cheney from most consequences–were truthful, and believe they know what happened.

Me, I don’t claim to know what happened. But I see no reason to trust Novak’s most recent answers when there was so much volatility in his story over time.

And I’m just as interested in unanswered questions about Novak’s timeline. For example:

July 7: As more details of Novak’s story came out, it became clear that he said he was working on a planted story impugning Frances Fragos Townsend on July 7 (one which was published on July 10). Murray Waas once suggested that that story had been planted by Scooter Libby and David Addington. And we now know that shortly after Novak sat for a deposition with Fitzgerald in fall 2004, the White House did a search (presumably pursuant to a Fitzgerald request) on "Plame Wilson Novak" on select dates including July 7.  So did Novak talk with Scooter Libby on July 7, one day before Novak asked Richard Armitage a rather stupid question that nevertheless elicited Valerie Plame’s role at the CIA? Did Novak talk with Scooter Libby on July 7, the same day Libby told Ari Fleischer Plame’s name and status and just hours before Novak called Fleischer asking for information on Wilson (Fleischer did not return the call)? Novak testified to disliking Wilson from their appearance on Meet the Press on July 6; if Novak spoke with Libby on July 7, is it even plausible that Wilson wouldn’t come up? Scooter Libby might one day be able to answer those questions, but Novak will bring his side of the story to the grave.

July 8: As I mentioned, Novak ultimately could never decide whether his conversation with Rove, in which Rove confirmed Valerie Plame’s identity, occurred on July 8 or July 9. I suspect the date is significant because if it was on July 8, then some of what Novak said to a friend of Joe Wilson’s on July 8–"Wilson’s an asshole. The CIA sent him. His wife, Valerie, works for the CIA. She’s a weapons of mass destruction specialist. She sent him."–could be attributed to Rove, not Armitage. Indeed, at least as of August 2004, Armitage and Novak disagreed about whether or not Armitage revealed either Valerie’s first name or her role in counterproliferation, and the latter is one part of Novak’s public story that kept changing. I suspect this story remained fluid for some very good reasons–because if it were solved, then Novak’s Armitage story might break down. But we’re not going to find out from Novak now.

July 9: Ah, the secret conversation with Scooter Libby! I’m most interested in this conversation because Novak and Libby appear to have very deliberately hid it. Fitzgerald appears to have been unaware of the conversation as late as September 2004. And Libby and Novak both used a strategy on journalist waivers–refusing global while accepting specific ones–that would have and did shield this conversation for years. Furthermore, there are hints that Judy Miller knew of a Libby-Novak conversation and suggestions that Libby’s unconscious was revealing it even when he was denying it to Fitzgerald. In short, this conversation stinks. And given that the aspects of Novak’s story that remain most dubious–where he got the name "Plame" and whether his use of "operative" meant he knew Plame was covert–are two things Libby was spilling to Ari Fleischer on July 7, that stinky conversation really stinks. Maybe Libby’s unconscious–or the burgeoning war between Cheney and Bush–will reveal these things. But Novak won’t.  

In other words, short of Woodward making up some wildarsed story about a conversation with Novak on his deathbed, much of this story will likely remain unrevealed.

May Novak’s family have the solace that comes now that he is at peace. And may some of the others keeping these secrets eventually tell them.

Sorry for being so late on this, but I wanted to come back to this bizarre Barton Gellman article on Cheney. Amidst news including 1) Cheney took notes, exactly none of which were introduced at trial and, 2) Cheney apologists like John Hannah are out giving interviews, Gellman provides the following weird two paragraphs, which provide the great drama of the story.

The depths of Cheney’s distress about another close friend, his former chief of staff and alter ego I. Lewis "Scooter" Libby, have only recently become clear. Bush refused a pardon after Libby’s felony convictions in 2007 for perjury and obstruction of an investigation of the leak of a clandestine CIA officer’s identity. Cheney tried mightily to prevent Libby’s fall, scrawling in a note made public at trial that he would not let anyone "sacrifice the guy that was asked to stick his neck in the meat grinder." Cheney never explained the allusion, but grand jury transcripts — and independent counsel Patrick J. Fitzgerald — suggested that Libby’s false statements aimed above all to protect the vice president.

Last month, an account in Time magazine, based on close access to Bush’s personal lawyer and White House counsel, described Cheney’s desperate end-of-term efforts to change Bush’s mind about a pardon. Cheney, who has spent a professional lifetime ignoring unflattering stories, issued a quietly furious reply. In the most explicit terms, he accused Bush of abandoning "an innocent man" who had served the president with honor and then become the "victim of a severe miscarriage of justice." Cheney now says privately that his memoir, expected to be published in spring 2011, will describe their heated arguments in full.

 This bit–which is what stuck in my craw–deserves some really close unpacking.

Cheney tried mightily to prevent Libby’s fall, scrawling in a note made public at trial that he would not let anyone "sacrifice the guy that was asked to stick his neck in the meat grinder." Cheney never explained the allusion, but grand jury transcripts — and independent counsel Patrick J. Fitzgerald — suggested that Libby’s false statements aimed above all to protect the vice president. 

Now, Gellman is ostensibly talking about Cheney’s efforts to get Bush to pardon Libby, actions that started in 2007 (and which, at the earliest, he might have first contemplated in 2005, when Judy Miller testified to the grand jury). But as his proof that "Cheney tried mightily to prevent Libby’s fall," Gellman raises the meat-grinder note. And that note–written around October 4, 2003–had absolutely nothing to do with preventing Libby’s "fall" referred to here–his conviction for perjury and obstruction of justice. Hell, it was written before the perjury (and false statements) occurred!! Rather, the reference to "not going to protect one staffer and sacrifice the guy the Pres that was asked to stick his neck in the meat grinder," had to do with protecting Libby from speculation in the press about his involvement in leaking Plame’s identity. Now, that is a sort of attempt to prevent Libby’s fall, but it’s not the one Gellman describes in this context. 

Which makes the next sentence–"Cheney never explained the allusion, but grand jury transcripts — and independent counsel Patrick J. Fitzgerald — suggested that Libby’s false statements aimed above all to protect the vice president"–utterly logically problematic. I agree that Libby’s lies and obstruction aimed to protect (at least) Cheney. But as I already noted, it would be impossible for that allusion to refer to Libby’s lies, because the allusion was made before them. Cheney was pressuring Bush to protect Libby from a different fall, one based on his primary actions in the Plame outing, not on his cover-up of those actions. It would have been nice, too, if Gellman had noted that Fitzgerald suggested in his closing statements that, on the very day Cheney wrote that note, Libby told him his cover story about where he learned of Plame’s name, and as Libby described did not object (so the obstruction began simultaneous with the meat-grinder note, but not the lies, yet).

And then there’s another weird bit. Gellman doesn’t even mention the reference to Bush–"the Pres"–in that note! If Libby’s outing of Plame (as distinct from his lies about it) were to protect Cheney alone, then why the reference to Bush?

So here’s what’s happening. For some reason, a really good reporter is confusing the four related actions:

Libby’s pushback against Wilson’s charges (June to July, 2003): Likely done at Bush’s request and–after certain directions from Cheney–ended in the outing of Valerie Plame. This was done to protect Bush and Cheney from pressure about their case for war.

Cheney’s successful pressure on Bush to exonerate Libby (October 2003): Possibly accomplished by invoking Bush’s role. This was done to protect Libby from speculation in the press about the first action.

Libby’s lies to the FBI and Fitz (fall 2003 and March 2004): Allegedly done with Cheney’s foreknowledge. This was done to protect (at least) Cheney from his role in the first action.

Bush’s commutation, then refused pardon, of Libby’s sentence (July 2007 and January 2009): In both Gellman’s story and the earlier Time one, this is the sole source of Cheney’s ire, which is in turn the point of the story. This was definitely an attempt to protect Libby; while the Time story speculates it was also an attempt to protect Cheney, it’s not clear whether that’s the whole story.

That is, Cheney’s ire is, by some remarkably bad writing (for Gellman at least), divorced from its relationship to the earlier three events even as those events are invoked. Which is how Gellman gets to this passage.

In the most explicit terms, he accused Bush of abandoning "an innocent man" who had served the president with honor and then become the "victim of a severe miscarriage of justice." Cheney now says privately that his memoir, expected to be published in spring 2011, will describe their heated arguments in full.

The "innocent man" and "victim of a severe miscarriage of justice" blah blah blah repeats the argument of Cheney from Time, though it appears to have come fresh through people like Hannah and Liz BabyDick Cheney to Gellman.

All of which climaxes in the big takeaway of Gellman’s story: Cheney’s memoir, coming out just short of five years after the commutation, "will describe their heated arguments in full." With the suggestion that those "heated arguments" refer to to Cheney’s arguments about the commutation and pardon.

And then, in a separate section of the article, Gellman repeats a Cheney statement he made right after his failure to win Bush a pardon to the Politico.

Cheney himself has said, without explanation, that "the statute of limitations has expired" on many of his secrets.

It’s unclear whether Cheney’s minions offered that quote up anew to Gellman, or whether he simply asked about the reference in the earlier article. But in a related chat Gellman provides a confident answer as to what the reference means.

Shreveport, La.: What statue of limitations is he talking about?

Barton Gellman: Mostly a metaphorical one — the idea that it would do any harm to talk about old disputes. In a technical sense, there are secrets whose value has expired — future war plans, for instance, when the war has long been launched — and classified information that has since been declassified.

Now, I actually don’t think the statute of limitations comment would refer (solely) to the Plame outing; there are plenty of crimes Cheney might have committed over the years on which the statutes of limitations have expired. When Cheney first made it, after all, it was just a month short of the expiration for any role he had in the hospital confrontation.

But I do think those arguments may be far more interesting–and far more threatening to Bush–than Gellman admits. At the very least, the whole sequence begins when Libby writes in his diary about Bush’s concern about the Kristof article.

One more point. As I mentioned, John Hannah was one of the people who dumped this story in Gellman’s lap. And Hannah is, after all, the fourth person involved in the beginning of that sequence, after Bush expresses concern and then Libby and Cheney and Hannah go into overdrive doing oppo research on the Wilsons. So while Gellman may have conflated different parts of the sequence, Hannah is likely to be well aware of at least some of how they relate together–including, potentially, Bush’s apparent role in setting off the sequence.

Now, these details don’t change the big takeaway: Cheney’s going after Bush in his memoirs. But between treating Cheney’s minions all too credulously and confusing the key facts–at least on the issue of Plame–Gellman appears to misunderstand the complexity of Cheney’s anger at Bush.

Assistant Attorney General Lanny Breuer’s background has been a key topic of discussion in CREW’s lawsuit to force DOJ to release Dick Cheney’s interview with Patrick Fitzgerald. The problem is, DOJ forgot to reveal that Breuer had represented one of the people involved with issues directly related to Cheney’s interview.

DOJ needed an expert on investigations of White House officials–so they got Breuer

During a hearing on whether or not DOJ should release Dick Cheney’s interview with Patrick Fitzgerald back in June, Judge Emmet Sullivan suggested that DOJ ought to have someone with actual experience in investigations of high level White House officials make their argument that releasing Cheney’s interview would make such investigations more difficult in the future.

MR. SMITH: In this case I don’t see — the law enforcement issue here is very unique and it’s very different than I think in Sussman and in most other cases. It’s an interest, it’s basically a chilling interest that if the Vice-President’s interview is released, that could have a chilling effect on future senior leadership.

THE COURT: Says who?

MR. SMITH: Says the Attorney General Mukasy [sic], that was his conclusion.

THE COURT: He didn’t file a declaration. Mr. Bradbury filed a declaration. He didn’t base it upon any experience, he didn’t base it upon anything. He didn’t articulate the bases for his declaration. Other than he was designated to follow declaration. So it wasn’t Mr. Mukasy [sic] who filed the declaration which arguably could have carried great weight. If the chief law enforcement officer says based on my experience and experience of others in law enforcement, it could have but that’s not the case here. Bradbury was a political appointee. I don’t know what his experience was. He was appointed to, maybe he was appointed to file this declaration. I don’t know what else he did. He’s no longer there at OLC. And essentially the government in footnote says I should defer to his declaration.

This is not a deferential review. I want to be clear I’m not suggesting that the Attorney General should sign a declaration. I’m not ordering, certainly not ordering him to do anything, but I’m just saying in response to what you just said arguably it could have carried greater weight for such a declaration to come from a law enforcement official based upon his or her experiences with respect to this chilling effect. Otherwise, it’s just an assumption this man makes based upon nothing he can point to. [my emphasis]

So rather than have the discredited Steven Bradbury submit this declaration, DOJ got Breuer to do so. After Breuer submitted a statement arguing that release of Cheney’s interview will present some new disincentive for high level White House officials in the future to cooperate that thirty years of routine release don’t already present, CREW questioned what basis Breuer had to make that claim.

The only experience plaintiff is aware of Mr. Breuer having with law enforcement investigations involving the White House is his tenure as special counsel to President Clinton during the Independent Counsel’s “Whitewater” investigation. Mr. Breuer “appeared before the grand jury . . . and invoked Executive Privilege,” a claim that was rejected by Chief Judge Johnson and that the Independent Counsel described as “interposed to prevent the grand jury from gathering relevant information.”

In response, DOJ played up Breuer’s experience relevant to this issue.

Mr. Breuer’s experience in criminal law and government investigations is, in fact, extensive. Prior to his appointment as Assistant Attorney General for the Criminal Division, Mr. Breuer served as an Assistant District Attorney in Manhattan, a senior legal official in the Clinton Administration, and the Co-Chair of Covington & Burling’s White Collar Defense and Investigations practice group.

What they didn’t say, though, is that Breuer represented someone involved in this very case.

What they didn’t say is that Breuer represented someone whose involvement in this matter may be related to precisely those things being hidden by DOJ’s refusal to release the interview.

Lanny Breuer represented one of the people at CIA involved in responding to Dick Cheney’s inquiries

Breuer, as his financial disclosure reveals, has provided John Kiriakou at least $5,000 of legal services. Now, Kiriakou is best known for going on ABC in 2007–shortly after the destruction of the torture tapes was first revealed–and claiming Abu Zubaydah was waterboarded just once, for 30, 35 seconds. A claim that, as readers of this site know well, turned out to be totally false.

But Kiriakou was also closely involved in the CIA Leak case. He was the one who, on June 10, 2003, was trying to come up with some answers about Joe Wilson for Vice President Cheney. He’s the author of the email that explains,

The VP apparently heard the below story and had questions on it. The DDCI needs a response before his noon meeting tomorrow (Wednesday [June 11]) with the VP, so if you could get back to me by 1000 or 1100 tomorrow, I’d appreciate it. Thanks a million.

Story: In Februay 2002, CIA received an initial report of a shipment of uranium from Niger to Chad [sic]. Former Ambassador to Cameroon [sic] Joe Wilson (an old friend of the Agency and former Charge d’Affaires in Baghdad) was supposedly sent by CIA to Niger to investigate the story. He did so, and he concluded that there was no truth to it. Wilson said that he was debriefed by a CIA case officer who flew in (to where is unclear) [redacted].

VP Questions: Is this story true? Do we have a chronological account of the above events? What is the nature of Wilson’s relationship with CIA? What exactly did Wilson report to us? Was this in a reporting cable [redacted] (if it was, can somebody send me a copy of it? Will you also send me a copy of the intel? [redacted] Didn’t the Brits come out with a similar report detailing a Niger-Iraq uranium connection? [redacted]

And that’s relevant because two of the things DOJ is trying to protect in Cheney’s interview pertain to Cheney’s conversations with the CIA–precisely what Kiriakou was personally involved in.

Vice President’s discussion of the substance of a conversation he had with the Director of the CIA concerning the decision to send Ambassador Wilson on a fact-finding mission to Niger in 2002. (Page 3, lines 15-17, 21-28)

Vice President’s discussion of his requests for information from the CIA relating to reported efforts by Iraqi officials to purchase uranium from Niger. (Page 6, lines 30-33, 39-40)

Indeed, Cheney’s conversation with Tenet is one of just two things in the interview DOJ is trying to hide that was not otherwise released in some form at the Libby trial (the other being a conversation Cheney had with Condi Rice). And we know that Kiriakou was gathering evidence for Tenet’s Deputy, John McLaughlin, on precisely this issue, around the same time that–Libby claimed–Tenet told Cheney about Plame’s identity.

Lanny Breuer’s ethics letter limits whether he can participate in issues related to people he represented

Now, I’m not sure whether and to what extent that at-least $5,000 of legal services involved helping to explain the context of Kiriakou’s e-mail about collecting information for Cheney. But I do know that Breuer has a letter agreeing that he would not participate in any matter in which a former client of his is a party for one year after he last provided services to that client.

For a period of one year after his resignation from the law firm of Covington & Burling, LLP, he also will not participate personally and substantially in any particular matter involving specific parties in which that law firm is a party or represents a party, unless he is first authorized to participate pursuant to 5 C.P.R. § 2635.502(d). In addition, he will not participate personally and substantially in any particular matter involving specific parties in which a former client of his is a
party or represents a party for a period of one year after he last provided service to that client, unless he is first authorized to participate pursuant to 5 C.F.R. § 2635.502(d).

Now, so long as Breuer’s relationship with Kiriakou ended at least a year ago, so long as Covington & Burling is not still representing Kirakou, this letter should not be a problem at all (yes, I’m working on finding out when C&B ended their relationship with Kiriakou).

But as a matter of common legal ethics, shouldn’t Breuer at least reveal to the Court that he represented someone who was personally involved in precisely the matters DOJ is trying to hide? 

There was a fair amount of back-and-forth in court filings about why Lanny Breuer was the one guy at DOJ best qualified to make the Jon Stewart defense: Whitewater, Assistant DA, Covington & Burling’s White Collar Defense practice. Somehow, though, DOJ forgot to mention Breuer’s most direct qualification for assessing whether the exposure of Cheney’s interview would embarrass him: representing one of the guys who was personally involved in one of the matters DOJ is trying to hide, Cheney’s discussions with the CIA about Wilson.

You’d think DOJ maybe could have mentioned that.