I consider myself a bit of an expert on live-blogging. So I had to cover this.

Remember how we live-blogged the Libby trial? We always had at least two people covering the trial: someone in the media room, live-blogging the minute-to-minute events, and someone in the court room, watching interactions between the people (those weren’t visible in the media room) and getting a feel for the overall trial. At times, though, we had three people covering the trial; that third person might be doing lunch and recap posts or covering the trial from their particular expertise (Pach viewing the trial from the standpoint of a shrink, for example). Having the third person was a welcome relief for what was a long, grueling process (remember–Jane was just out of surgery and it was over a month and a half from jury selection to verdict).

Plus, the trial was something of real consequence and detail. It really helped understand what happened, having at least a second person there to double check the details.

Two, maybe three people to do original reporting from the site, as well as detailed commentary on a trial of real consequence.

Which is why I share Athenae’s shock.

Three Reporters

The Internet continues its slaughter of serious journalism about serious things:

New York Times reporters Helene Cooper, Peter Baker and Jeff Zeleny live-blogged the so-called beer summit of President Obama, Professor Henry Louis Gates, Jr. and the officer who arrested him in Cambridge nearly two weeks ago, Sgt. James Crowley.

It took three of them to "live-blog" the "beer summit." I mean, I’m sorry, but Puck and Willie B could have handled that assignment admirably and Puck just right now ran headfirst into a table leg, so.

It gets even better! NYT says "Helene Cooper reported live from the White House." But down below in the post, Cooper admits she wasn’t in the pool covering the "event."

Here at the White House, the handful of reporters who are in the press pool will be taken to the beer summit site. Unfortunately, I do not have pool duty. So I and the majority of the press corps will wait impatiently to get the pool report from our pool colleagues.

Three people, relying on pool reports and the same televised coverage you and I got (and FWIW, I was getting that pool coverage as well). 

For an eff-ing 40 minute "beer summit."

I’m mostly amused by Steven Aftergood’s report that the CIA refuses to release the PDB-related materials introduced at Scooter Libby’s trial.

Even though certain information concerning the President’s Daily Brief (PDB) was redacted and declassified for use in the prosecution of former vice presidential aide Scooter Libby in 2006, that same information is nonetheless “currently and properly classified,” the Central Intelligence Agency said (pdf) last week.  The Agency denied release of the material under the Freedom of Information Act.

The existence of the declassified PDB material was disclosed in a January 9, 2006 letter (pdf) from Special Counsel Patrick J. Fitzgerald to Mr. Libby’s attorney.  He wrote:  “In response to our requests, we have received [from CIA] a very discrete amount of material relating to PDBs and discussions involving Mr. Libby and/or Vice President Cheney concerning or relating to the PDBs.  We have provided to Mr. Libby and his counsel (or are in the process of providing such documents consistent with the process of a declassification review) copies of any pages in our possession… in the redacted form in which we received them.”

Since declassified PDBs are comparatively rare, we submitted a Freedom of Information Act request in February 2006 for a copy of the PDB-related material that was declassified by CIA for the Libby prosecution.  Last week, the CIA responded that it had located the requested material but that “we determined [it] is currently and properly classified and must be denied in its entirety.”

As Aftergood notes, two of the PDB-related tables of contents were introduced at the trial–Libby’s briefing for June 14, 2003, and Cheney’s briefing for July 14, 2003. Those tables of contents are prominently stamped "unclassified," but they’re entirely redacted except for a few logistical notes and Libby briefer Craig Schmall’s notes from those briefings, which are:

• Why was the Amb told this was a VP office question? Joe Wilson Valerie Wilson (June 14)
• Tom Cruise and Penelope Cruz at his office. (June 14)
• Sensitive memo from DDCI] RETURN (June 14)
• Senior intel official: someone in the sessions spoke directly to the press > press is calling Scooter directly — he asked who he spoke to directly (June 14)
• Did you read the Novak article? Not your problem. (July 14)

For some reason, the CIA refused to release these two highly-redacted PDB-related documents. I guess they don’t want you to know that these top-secret briefing sessions include discussions of the private meetings that Scientologists get with the Vice President’s Chief of Staff (Cruise and Cruz were lobbying Libby–as they had lobbied Ricard Armitage that same week–to pressure Germany about its treatment of Scientologists). Our culture of secrecy is protecting some really important secrets, I guess.

That said, just to piss off the CIA, here’s what–according to Schmall’s testimony–the June 14 PDB contained, in general form, along with the daily threat assessment. Libby lawyer and graymail artist John Cline led Schmall through this list in an attempt to introduce the memory defense without having to put Libby on the stand.

Q   I want to take you through those topics and see if you can recall briefing Mr. Libby about them on that Saturday June 14th.  Now, all I want you to do, in answer to my question, is say yes, you recall or no, you don’t recall.  I don’t want you to expand, okay?
A   Okay.  Recall briefing it on that day, sir, correct?
Q   That’s correct.  Do you recall briefing Mr. Libby on Saturday, June 14th, about a bomb that had been diffused near a western residential compound in Yemen?
A   No, sir, I don’t.
Q   Do you recall briefing Mr. Libby about the police arresting an individual responsible for a terrorist bombing in a country that I can’t identify?
A   No, sir, I don’t.
Q   Do you recall briefing Mr. Libby about nearly simultaneous explosions in the capitol of a country?
A   No, sir, I don’t.
Q   Do you recall briefing Mr. Libby about an East African extremist network?
A   No, sir.
Q   Do you recall briefing Mr. Libby about information on a possible Al-Qaeda attack in the United States?
A   No, sir, I don’t.
Q   Do you recall briefing Mr. Libby about a concern involving a specific vulnerability to terrorist attacks?
A   No, sir, I don’t.
Q   Do you recall briefing Mr. Libby about a proposed Middle East security plan?
A   No, sir.
Q   Do you recall briefing Mr. Libby about a country’s security measures hampering Al-Qaeda’s activities?
A   No, sir.
Q   How about an international organization’s position concerning a country’s nuclear program, do you recall briefing him on Saturday, June 14th?
A   No, sir, I don’t.
Q   How about briefing Mr. Libby on the, that Iraq’s porous borders present a security threat?
A   No, sir.
Q   How about violent demonstrations in Iran?
A   No, sir.
Q   Do you recall that you gave Mr. Libby briefings on a total of 27 items that day?
A   I’m not aware of how many items were briefed that day.
Q   Did you review the unredacted table of contents before you came over to testify?
A   Yes, I had seen them before.
Q   And based on your review of that unredacted table of contents, are you able to confirm for us that there were 27 items that you briefed Mr. Libby on that day?
A   No, sir.  I really didn’t pay that much attention to these specific items in the briefings.
Q   You mean in preparing for your testimony?
A   Yes, sir.
Q   At the time you paid close attention?
A   Absolutely, sir.
Q   Because you knew this was very important stuff, right?
A   Yes, sir.
Q   Do you recall briefing Mr. Libby on June 14th on the challenge posed by Palestinian terrorist groups to improving relations between the Palestinian authorities and Israel?
A   No, sir.
Q   Do you recall that Mr. Libby requested that several items from the June 14, 2003, list, several of these articles that you gave him, be returned to him on June 16th?
A   I don’t recall that specifically.
Q   That did happen from time to time, correct?
A   Yes, sir.
Q   You just don’t recall what happened on this day?
A   Not on June 14, no, sir.
Q   Now, I’ve asked you about some of the inteligence articles that you briefed Mr. Libby about on Saturday, June 14th.  You don’t recall any of them; right?
A   That’s correct, sir.
Q   Now, I’m going to ask you about some of the items on that list of terrorist threats that we talked about before but can’t name.  Are you familiar with what I’m talking about?
A   Yes, sir.
Q   Do you remember briefing Mr. Libby on Saturday, June 14, about the concern over possible suicide operations to highjacked aircraft at Al-Qaeda International Airport by a terrorist group with links to Al-Qaeda?
A   No, sir, I don’t.
Q   Do you recall briefing Mr. Libby on Saturday, June 14th, about a concern about terrorists providing support to a planned terrorist operation or business transaction by Al-Qaeda?
A   No, sir, I don’t.
Q   Do you remember briefing Mr. Libby on Saturday, June 14th, about potential suicide attacks against U.S. forces in Iraq by a terrorist group?
A   No, sir.
Q   Do you recall briefing Mr. Libby on Saturday, June 14th, about potential terrorist attacks at unspecified times against the U.S. Embassy and the British High Commission in Kenya?
A   No, sir, I don’t.
Q   Do you recall, Mr. Schmall, that there were 11 pages of terrorist threats in that list that you gave him that day, Saturday, June 14th?
A   It’s not clear.  I’m not sure whether I actually gave it to him that day.  It wasn’t listed on my table of contents. And there came a time when frankly we stopped putting that compilation in the briefing books.
Q   I understand.  If it has been represented to us by the Agency that this was presented to him that day, would you agree with me that those items were in there or do you not recall?
A   I don’t recall, sir.
Q   I take it you don’t recall briefing Mr. Libby that an unspecified group was observed videotaping facilities near a U.S. university on Saturday, June 14th?
A   No, sir, I don’t.
Q   That list of items that I’ve just run down for you, both the articles and the terrorist threats, I understand you don’t recall anything that happened on June 14th in terms of what you briefed Mr. Libby on, correct?
A   Yes, sir.
Q   I gather, though, that those types of items, putting aside the question of when you stopped presenting the list of the terrorist items, those are the kinds of items that would be briefed to Mr. Libby six days a week, correct?
A   Yes, sir.

There. I’ve just exposed highly classified PDB-related materials the CIA says cannot be released. Pretty impressive huh?

(I think admitting that our top CIA briefers are wasting time talking about Scientologists might be an even greater threat than releasing the information in the actual briefing document.)

I thought I was done with the myth on the Scooter Libby non-pardon. But dday’s emphasis on the second most eye-popping detail from Time’s story–Libby’s unsuccessful attempt to appeal to Bush personally for a pardon (the most eye-popping being Bush’s consultation with his own defense attorney)–made me want to tell this story again to emphasize the known facts rather than Bush’s self-serving spin of those facts.

The short version, though, is that the White House prevented Libby from speaking to Bush directly about this case, all the while telling a narrative that the question of pardon pertained narrowly to whether Libby lied about his conversation with Russert and not the larger questions implicating both Cheney and Bush. After Libby appealed his case through Fielding indirectly to Bush, Bush consulted with his defense attorney. And the two of them–Bush and his defense attorney–apparently made the final decision not to pardon Libby just two days before Bush left office.

The Three Clouds over the Commutation and Pardon Discussion

Not long before the jury returned a guilty verdict, Patrick Fitzgerald summarized the problem with Libby’s successful perjury and obstruction of justice.

There is a cloud over what the Vice President did that week. He wrote those columns. He had those meetings. He sent Libby off to Judith Miller at the St. Regis Hotel. At that meeting, … the defendant talked about the wife. We didn’t put that cloud there. That cloud remains because the defendant has obstructed justice and lied about what happened.

As the trial revealed, Dick Cheney had ordered Scooter Libby to leak something to Judy Miller. Around the same time Cheney gave that order, Cheney made mad scribblings on Joe Wilson’s op-ed, singularly emphasizing the story of Joe Wilson’s wife. After receiving Cheney’s order, Libby leaked Valerie Wilson’s identity to Miller and went on to give Ari Fleischer some of the details–the name "Plame" and her covert status–that remain unexplained in Bob Novak’s article. 

In other words, the primary cloud over the Vice President was the question, "did the Vice President order his top aide to leak Valerie Wilson’s identity?" And since Libby was the only witness to Cheney’s order, so long as he remained willing to continue telling his lies about his role in the leak, Fitzgerald could never remove that cloud. So long as Libby was willing to take the fall for Cheney, we would never know whether Cheney and Libby had maliciously and knowingly outed Valerie.

But that cloud also blocked another cloud, one over the Vice President and the President. Libby had testified to the grand jury that–after hesitating about leaking the information to Judy (which had to be more than the NIE, since he had already leaked the NIE by this point), Cheney reassured him that President Bush had declassified it, meaning it was okay to leak. Libby didn’t entirely trust Cheney on that point–he double checked with David Addington whether Cheney’s reassurances even made sense legally. But based on Cheney’s reassurance and Addington’s confirmation that the President can declassify whatever he wants, Libby leaked the information to Judy Miller. 

Cheney, too, was asked about how this information got declassified. According to Cheney’s lawyer, Cheney maintained that,

Cheney’s lawyer told reporters that the president had "declassified the information and authorized and directed the vice president to get it out" but "didn’t get into how it would be done." Then the vice president had directed his top aide, Scooter Libby, to supply the information anonymously to reporters.

Bush almost certainly got asked a similar question when–with his own defense attorney Jim Sharp present–he met with Pat Fitzgerald seven weeks after Cheney did. We don’t know how Bush responded to Fitzgerald’s questions, and we don’t know whether Cheney’s lawyer’s anonymous leaking of Cheney’s story to Michael Isikoff matches what Cheney told Fitzgerald But this cloud–whether Bush had authorized leaking classified information to rebut Joe Wilson, and if so, what Bush understood that information to include–also remains over the Vice President and the President himself.  The probable forthcoming release of Cheney’s interview may clarify this cloud, or it may simply darken it, but it will probably make the cloud more apparent in any case.

But there’s a third cloud. We have just one known written piece of evidence proving that Cheney ordered Libby to leak stuff to Judy Miller (Libby’s note recording the order). We have no known pieces of evidence documenting the declassification of information to leak to Judy Miller (Cheney’s Fourth Branch stunt took care of that). But we do have a written piece of evidence (Libby’s June 9, 2003 diary) that Bush expressed concern about Joe Wilson’s allegations on the morning that OVP started scouring for the government for opposition research to shut Joe Wilson up. And we do have a written piece of evidence (the meat grinder note) that Cheney understood Bush to have ordered Libby to take an active role in rebutting Joe Wilson’s claims, something Cheney probably reminded Bush of before demanding that Scott McClellan exonerate Libby publicly. 

The third cloud over the commutation and pardon discussion, then, is the question, "What did the President know and when did he know it?" Or, more exactly, "What did the President order, and what degree of detail and awareness did he have when he made that order?"

Libby’s continued willingness to stick by his lies put the cloud over Cheney’s order to leak classified information to Judy Miller. But it also put a cloud over whether Bush declassified that information and whether that information included Valerie Wilson’s identity. And it also put a cloud over precisely what Bush said before OVP started investigating the Wilsons, and what Cheney understood by his reference to the President’s request that Libby stick his neck in a meat grinder.

Libby’s continued silence created uncertainty over all three  of those issues.

Via Extraordinary Means, Bush Commutes Libby’s Sentence Before He Goes to Prison

Following a trial in which promised testimony from both Cheney and Libby failed to materialize, the jury found Libby guilty of four of five counts. And following normal sentencing guidelines with a cross-reference because of the seriousness of the crime of outing a CIA officer, Libby was sentenced to 30 months in prison. 

Between Libby’s guilty verdict and the time the Appeals Court refused to stay Libby’s incarceration pending appeal on July 2, 2007, the White House devised a way to keep Libby out of prison and silent. (Note that Bush’s commutation of Libby’s sentence was not–as Time claims–triggered to the Appeals Court ruling against Libby on his appeal–Libby eventually dropped his appeal–but to Libby’s imminent imprisonment due to their refusal of a stay.) "The White House was prepared," according to Time, because Fred Fielding had started reviewing Libby’s case.

Now that, already, was unusual. As Bush’s Pardon Attorney explained in testimony before the House Judiciary Committee, requests for commutations or pardons normally come via an application to the Office of Pardon Attorney. Someone who–like Libby–was still appealing his conviction and had not yet reported to prison is normally ineligible for consideration for a commutation (though one person had his sentence commuted to home confinement by Bill Clinton while his conviction was still under appeal).

An inmate is eligible to apply for commutation so long as he has reported to prison to begin serving his sentence and is not challenging his conviction through an appeal or other court proceeding.

Yet the Court’s order that Libby report to prison appears to be what precipitated his commutation.

And a pardon is not usually requested until a person fulfills his sentence.

Executive clemency petitions usually request either a pardon after completion of sentence or a commutation – reduction of sentence – currently being served.

And none of these things–consideration for commutation or a pardon–are supposed to happen without the feedback of the prosecuting US Attorney.

my office contacts the United States Attorney for the federal district of conviction or the prosecuting section of the Department of Justice for comments and recommendations regarding the commutation request

None of this, however, applied in the Libby case. On the contrary, the Pardon Attorney testified that, "neither I nor my office had anything to do with the commutation for Mr. Libby" and on the day of Libby’s pardon, Fitzgerald defended Libby’s sentence as reasonable.

Instead of following the normal process, Time describes, Fred Fielding reviewed the case. According to Time, this former aide to Nixon–Nixon never expressed guilt or real remorse before receiving his pardon–counseled Bush that he should not pardon Libby because he had not expressed guilt or remorse. But, Fielding reportedly counseled, the President "had wide discretion to determine" the fairness of Libby’s sentence.

And so it was that, via utterly unique means (and a false narrative about what was normal or not for clemency), Bush prevented Libby from going to jail, without giving him–as a full pardon would have–immunity from further prosecution and therefore the inability to invoke the Fifth to avoid testifying before a Congressional committee.

"Cheney and his allies were" according to several former officials serving as Time’s sources, "so happy that [Scooter] wasn’t going to jail." 

Cheney (and Libby) Make Several Further Unusual Appeals for a Pardon

After the commutation, Time reports, Cheney continued to make his appeals to Bush to pardon Libby, all the time via abnormal, direct means.

In Libby’s case, Cheney simply carried the message directly to Bush, as he had with so many other issues in the past, pressing the President in one-on-one meetings or in larger settings. A White House veteran was struck by his "extraordinary level of attention" to the case. Cheney’s persistence became nearly as big an issue as the pardon itself. "Cheney really got in the President’s face," says a longtime Bush-family source. "He just wouldn’t give it up."

Now, as Time reports it, Fielding either read for the first time–or reviewed anew–Libby’s trial transcript in anticipation of a mid-January meeting (roughly January 11) on whether or not to pardon Libby.

And so again the job fell to Fielding. The counsel knew that only one legitimate reason for a pardon remained: if the case against him had been a miscarriage of justice. Because that kind of judgment required a thorough review, Fielding plowed through a thick transcript of the trial himself, examining the evidence supporting each charge. It took Fielding a full week. He prepared his brief for an expected showdown at a pardon meeting in mid-January 2009.

[snip]

For his part, Fielding laid out most of his findings in a document called the pardon book, a compendium of evidence for anyone seeking clemency. The book on Libby lengthened the odds on a pardon. "You might disagree with the fact that the case had been brought and that prosecutorial discretion had been used in this way," says a source familiar with the review. "But the question of whether there had been materially misleading statements made by Scooter — on the facts, on the evidence, it was pretty clear." As far as Fielding was concerned, Libby had lied under oath.

According to Time, Cheney presented his case for Libby’s pardon on roughly January 11, at a meeting probably attended (given the sourcing of this story) by Ed Gillespie, Josh Bolten, and Fred Fielding, as well as Bush. Time suggests Cheney appealed narrowly to the case of whether or not Libby lied about his meeting with Russert and not the larger question of whether he knew, before he spoke to Russert, that Cheney had told him of Plame’s identity.

The Vice President argued the case in that Oval Office session, which was attended by the President and his top aides.

[snip]

Cheney, however, considered it an open question. "Who do you believe, Scooter or Russert?" he asked Bush.

Now, Cheney may have made his appeal in these terms. But the trial record that Fred Fielding reviewed so closely makes it clear that Libby told Cheney his Russert story before he first used it with the FBI, and Cheney did not correct the story, not even when Libby alerted Cheney to the note showing Cheney–and not Russert–had told him of Plame’s identity. So if that is, indeed, what Cheney said (there are tons of reasons to doubt it), Fielding had to have known that if Libby had been lying, then Cheney was in on the story. And, if Fielding is as sharp a lawyer as his fans make him out to be in the Time story, Fielding undoubtedly knew of the way Libby’s fragile story implicated Bush, not least through the meat grinder note and Bush’s subsequent exoneration of Libby.

A few days later (roughly January 13), Bush told Cheney no.

A few days later, about a week before they would become private citizens, Bush pulled Cheney aside after a morning meeting and told him there would be no pardon. Cheney looked stricken. Most officials respond to a presidential rebuff with a polite thanks for considering the request in the first place. But Cheney, an observer says, "expressed his disappointment and disagreement with the decision … He didn’t take it well."

On roughly January 15, Libby called Bolten and asked to make an appeal to Bush personally. Bolten must have refused Libby that meeting. Instead, he set up a meeting between Libby and Fielding and almost certainly Emmet Flood (who took the lead on all CIA Leak case issues in the WH Counsel’s office) for January 17.

Two days after that, 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. 

Presumably, Fielding reported that conversation to Bush on January 17. The very next day, Bush invited his personal attorney over to consult on the decision.

Meanwhile, Bush was running his own traps. He called Jim Sharp, his personal attorney in the Plame case, who had been present when he was interviewed by Fitzgerald in 2004.

[snip]

On the Sunday before he left office, Bush invited Sharp to the executive mansion for a farewell cigar.

Now, Time presents a version that–given questions that almost certainly got asked at Bush’s own interview with Fitzgerald–is probably an utter and complete myth. At the very least, their conversation had to have taken into account the question of whether Cheney lied when he said Libby could leak stuff to Judy Miller on Bush’s authority.

If you ignore the implausible content of the reported meetings, though, you get the following narrative.

In July 2007, as soon as it became clear that Libby would have to go to prison, Fred Fielding broke all normal protocol and recommended that Bush implement the solution–commutation–that would keep Libby out of jail with his Fifth Amendment protection intact.

Cheney continued to lobby–again, outside of normal protocol for pardons–for a pardon. Whereas on other pardons, Bush directed people to work through Fielding alone, on roughly January 11, Bush gave Cheney a direct audience to make his case. Bush has some people present (probably Gillespie and Bolten) who may not have known all the details that implicated Bush. But Fielding, by that point, should have known how Libby’s testimony implicated both Cheney and Bush.

Apparently on Fielding’s counsel, Bush told Cheney Bush would not pardon Libby two days later. 

In response, Libby asked for his own audience with the President. Bolten refused, denying Libby the opportunity to make his case directly (presumably in private?) with Bush. But Bolten did set up a meeting with Libby and the two lawyers who had to have known how this implicated the President. Presumably in response to Fielding’s report of that meeting, Bush met with his defense attorney, and asked him whether he thought he should pardon Libby. And between the two of them–Bush and his defense attorney–they decided to deny Libby’s last ditch request for a pardon.

Time’s nicely spun story sort of distracts from the both the underlying knowledge several key players had as well as the seeming progression from the denial of Cheney’s request, followed by Libby’s request, followed by a hurried consultation with Bush’s defense attorney. But those are, almost certainly, the most important facts in this tale.

You need to keep one thing in mind as you read this story about Cheney’s campaign to get Bush to pardon Scooter Libby for his conviction related to the CIA Leak case. (h/t MadDog) Judge Emmet Sullivan has strongly suggested he’s going to rule in favor of CREW in its FOIA of Dick Cheney’s interview with Patrick Fitzgerald. So chances are good that we’ll get to see that interview in the foreseeable future. But Congress withdrew its request and CREW has not made any request to get Bush’s interview.

In other words, the sources for the story know that Cheney’s interview will soon become public, but that Bush’s probably won’t be.

As a result, the Bush partisans can tell a story about Bush being really miffed at Libby’s role in the case, all while claiming that the commutation (which of course was and still is the best way to ensure Libby never talks going forward) had nothing to do with Bush’s own knowledge of the leak.

Time Ignores that Libby Was Protecting Cheney AND Bush

This misleading narrative pervades the entire story. For example, Time suggests that Libby lied to the FBI because his job was on the line, and not because he was protecting Cheney and–at least to some degree–Bush. Time claims Cheney "assured Bush" Libby "wasn’t involved," when the note Cheney wrote prior to that exoneration implicates Bush himself and may reflect Cheney’s recognition that Libby had leaked the CIA trip report.

But Libby had reason to lie: his job was at stake, and his boss’s was on the line too. Bush had declared that anyone involved in leaking Plame’s identity would be fired. Cheney had personally assured Bush early on that his aide wasn’t involved, even persuading the President to exonerate Libby publicly through a spokesman.

And Time reports Bush officials acknowledging that Libby may well have taken the fall–but in spite of evidence of Bush’s personal involvement, portrays that acknowledgment as pertaining only to Cheney, not Bush himself.

As a former Bush senior aide explains, "I’m sure the President and [chief of staff] Josh [Bolten] and Fred had a concern that somewhere, deep in there, there was a cover-up."

[snip]

Some Bush officials wondered whether Libby was covering up for Cheney’s involvement in the leak of Plame’s identity.

Most humorously, Time doesn’t blink at the story that Bush felt the need to consult his own defense attorney about whether or not he should pardon Libby!

Meanwhile, Bush was running his own traps. He called Jim Sharp, his personal attorney in the Plame case, who had been present when he was interviewed by Fitzgerald in 2004. Sharp was known in Washington as one of the best lawyers nobody knew.

[snip]

While packing boxes in the upstairs residence, according to his associates, Bush noted that he was again under pressure from Cheney to pardon Libby. He characterized Cheney as a friend and a good Vice President but said his pardon request had little internal support. If the presidential staff were polled, the result would be 100 to 1 against a pardon, Bush joked. Then he turned to Sharp. "What’s the bottom line here? Did this guy lie or not?"

The lawyer, who had followed the case very closely, replied affirmatively.

I’m sure Bush’s defense lawyer didn’t mention that pardoning Libby would make it impossible for him to invoke the Fifth. Sure. Right.

Time Pretends Fielding’s Actions Were "Normal"

Time reports Fred Fielding as considering what was "normal" for pardons (remember–this guy worked for Nixon!), but does not note that the commutation itself violated the norm (which is that someone serves some of his time before a commutation). And it doesn’t mention that the commutation served an additional purpose–keeping Libby out of jail with his ability to invoke the Fifth intact, making it almost impossible for Congress to call him to testify on Bush or Cheney’s role in the leak.

Fielding’s arrival in early 2007 was one of several signs that the balance of power in the Administration had shifted against the Vice President. Fielding reviewed the Libby case before the appellate verdict came down and recommended against a presidential pardon. Cheney’s longtime aide hadn’t met the criteria: accepting responsibility for the crime, doing time and demonstrating remorse. "Pardons tend to be for the repentant," says a senior Administration official familiar with the 2007 pardon review, "not for those who think the system was politicized or they were unfairly targeted."

The verdict was one thing. Libby’s sentence was another matter. Fielding told Bush that the President had wide discretion to determine its fairness. And within hours of the appeals-court ruling, Bush pronounced the jail time "excessive," commuting Libby’s prison term while leaving in place the fine and, most important, the guilty verdict — which meant Libby would probably never practice law again. Fielding’s recommendation was widely circulated in the White House before it was announced, and there is no evidence of disagreement. If Cheney and his allies were disappointed with Bush’s decision, they did not show it, several former officials say, in part because they were, as one put it, "so happy that [Scooter] wasn’t going to jail."

Similarly, Time makes great efforts to make Fred Fielding’s recommendation that Bush not pardon Libby appear to be all reasonable, without noting that normally pardons get reviewed by the pardon attorney, not the White House Counsel.

The counsel knew that only one legitimate reason for a pardon remained: if the case against him had been a miscarriage of justice. Because that kind of judgment required a thorough review, Fielding plowed through a thick transcript of the trial himself, examining the evidence supporting each charge. It took Fielding a full week. He prepared his brief for an expected showdown at a pardon meeting in mid-January 2009. 

[snip]

For his part, Fielding laid out most of his findings in a document called the pardon book, a compendium of evidence for anyone seeking clemency. The book on Libby lengthened the odds on a pardon. "You might disagree with the fact that the case had been brought and that prosecutorial discretion had been used in this way," says a source familiar with the review. "But the question of whether there had been materially misleading statements made by Scooter — on the facts, on the evidence, it was pretty clear." As far as Fielding was concerned, Libby had lied under oath.

As a result, Time spins the highly unusual centrality of the White House Counsel in this decision and the outcome as a great, wise judgment rather than the best way to carry out a cover up.

Time Creates the Myth of Bush the Protector of the Truth

And most ridiculously, Time reports Bush’s appeal to the truth in his commutation, without noting Bush’s earlier flipflops on statements claiming to want the truth.

And there were these two sentences: "Our entire system of justice relies on people telling the truth," Bush said. "And if a person does not tell the truth, particularly if he serves in government and holds the public trust, he must be held accountable." Particularly if he serves in government. Bush’s allies would say later that the language was intended to send an unmistakable message, internally as well as externally: No one is above the law.

(Of course, if Time were to admit that Bush promised to fire people who leaked Plame’s name but did not fire Rove, they would also have to admit that the magazine published claims from Rove they knew to be false during the investigation–so I guess I can see why they like this "truth" fairy tale.)

Which creates, finally, the noble fiction of Bush making this difficult decision alone, and choosing for the truth over his Vice President.

Bush would decide alone. In private, he was bothered by Libby’s lack of repentance. But he seemed more riveted by the central issue of the trial: truthfulness. Did Libby lie to prosecutors? The President had been told by private lawyers in the case that Libby never should have testified before the grand jury and instead should have invoked his Fifth Amendment right not to incriminate himself. Prosecutors can accept that. But lie to them, and it gets personal. "It’s the difference between making mistakes, which everybody does, and making up a story," a lawyer told Bush. "That is a sin that prosecutors are not going to forgive."

Ah yes. Making up a story. Not like Bush and his partisans would ever do that!

In today’s second installment on ways American taxpayers are wasting money to protect Dick Cheney from embarrassment, Josh Gerstein has a report on today’s hearing on CREW’s FOIA of Cheney’s interview in the CIA Leak Case. And DOJ is unabashedly making the argument that it should not release Dick Cheney’s interview because it might embarrrass him. (h/t MadDog)

Smith said the Justice Department’s view was that a delay of five to ten years was appropriate, marked from the time the official or his or her administration left office. “It’s a judgment call,” Smith acknowledged.

Smith suggested that such a delay would make it more likely that the information was used for historical purposes and not for political embarrassment. “The distinction is between releasing it for historical view and releasing it into the political fray,” Smith said.

Funny, DOJ claimed it was arguing for the longer-than-statutes-of-limitation delay because of concerns that future Vice Presidents wouldn’t cooperate willingly with investigations. As time goes on an their arguments look shittier and shittier, I guess, they become more and more truthful. Thus their invention of a new FOIA embarrassment exemption.

It sounds like Emmet Sullivan is not buying that argument–though he is also unwilling to just order the release of the interview without giving Obama’s DOJ an opportunity to waste more money protecting Cheney from embarrassment.

As the hearing concluded, Sullivan said he thought Congress had drawn a “bright line” with language in the Freedom of Information Act that generally exempts information about pending investigations from disclosure, but not closed probes, like the CIA leak case. He also said he would stay any ruling so the government could appeal before he released any documents.

President Obama? Attorney General Holder? This nonsense has gone on long enough. As I noted, Cheney’s participation in this probe is proof enough that the investigative concerns are bunk. It really is high time to stop wasting money preventing taxpayers from learning what Cheney did in our name.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This may sound self-evident. But the fact that Dick Cheney’s lawyer, Terry O’Donnell, leaked material that Dick Cheney told Fitzgerald in his interview absolutely destroys the government’s argument for keeping those interview materials secret. That’s because the government is arguing that materials collected for law enforcement should never be used for political purposes.  But O’Donnell’s leak was just that, and as such constitutes not only an explicit waiver to release the materials, but devastating proof that DOJ’s hand-wringing about letting this information out to be misplaced.

DOJ Produced a Vaughn Index in Response to a Sullivan Order

The government produced last week’s filing–complete with descriptions of all the contents of Cheney’s interview, in response to an order from Judge Sullivan, who didn’t buy that Steven Bradbury was properly qualified to claim that releasing Cheney’s interview materials would "chill" future investigations without more explanation. (This is from the transcript from the June 18 hearing, with spelling corrected.)

THE COURT: Otherwise, it’s just an assumption [Bradbury] makes based upon nothing he can point to. He didn’t say that he had spoken with the Vice-President, the Vice-President told him in retrospect had I known that, I never would have done this absent a subpoena. So that’s the problem the Court finds itself in. There’s not a lot said in the declaration other than this will happen.

Of particular note, Sullivan noted that the government has not properly invoked executive privilege here.

THE COURT: But it’s clear from the record the President and no one in the executive branch has clearly asserted executive privilege here. There are the law enforcement exemption and there’s certain other deliberative process et cetera, et cetera, exemptions that the government avails itself of but it’s not an executive privilege.

So Sullivan gave the government a second shot to appropriately explain why this stuff should be exempt from FOIA.

But it’s not going to help the government much. Granted, the government did have someone more qualified to talk about how releasing this interview would "chill" future  investigations than Steven Bradbury–Criminal Division Head Lanny Breuer. But Breuer’s examples of how releasing Cheney’s interview materials would "chill" future investigations were totally inapposite to this case. Breuer argues that releasing a late-investigation interview of a key subject of that investigation will dissuade ancillary witnesses from cooperating early in an investigation. And his examples of previous high level investigations show that the norm for such investigations is public disclosure.

Implicit Waiver v. The Chill

Which, I suspect, will leave Judge Sullivan right where he was before–with CREW arguing that Cheney gave an implicit waiver to have this released when he agreed to an interview with no conditions, and the government arguing that releasing the interview will "chill" future investigations of the White House.

CREW argues that Cheney agreed to the interview with no conditions so he could appear (aside from the disappearing emails, of course) to be utterly cooperative; CREW suggests that if he had real concerns about the release of the interview, he could have done what C. Boyden Gray did during Iran-Contra.

Mr. Cheney is a very savvy individual. If he wanted to protect the confidentiality of this information and we know that he knows how to protect confidentiality of information when he wants to, he would have done so, he would have known what he, the steps that he needed to take and he didn’t take them.

[snip]

MR. SOBEL: I  think the Boyden Gray example shows that all Mr. Cheney would have had to have done as Mr. Gray had done was say Mr. Fitzgerald, I’m very happy to meet with you. However, by virtue of doing so, it must be understood that I am not waiving any privilege claims and that was not done.

THE COURT: That was not done here?

MR. SOBEL: Plaintiff’s Exhibit A attached to our cross motion is Mr. Fitzgerald’s letter to Congressman Waxman in which he states very clearly that there was no such request, there were no conditions, no agreements, and that is really the critical factor here. And that is why disclosure would not chill a future cooperation. It would merely require the witness as Mr. Gray did in the Iran Contra investigation to say to the special prosecutor I’m happy to meet with you, but by doing so please have it understood that I am not waiving any privilege claims.

[snip]

MR. SOBEL: And there was a waiver. I mean, so with respect to the exemption 5 claims, there was a waiver by virtue of Mr. Cheney’s behavior or lack of any indication of concern at the time he spoke to the FBI about the confidentiality of the material, and with respect to 7(a) as we’ve discussed, their, this chilling effect argument just doesn’t carry any weight.

Of course, CREW’s lawyer took this stance before it became clear that not only did Cheney not impose conditions on his interview with Fitzgerald, his lawyer leaked the contents of his interview willingly, for political (and probably legal) reasons. So if there were any question, before yesterday, about whether or not Cheney was okay with contents from his interview being made public, there’s definitely no question now.

Cheney’s Lawyer’s Political Leak

As a review, in April 2006, it became increasingly clear (after I first reported it in February) that Cheney had ordered Libby to leak classified information to reporters, with Bush’s blessing. Just at the time when other reporters were beginning to wonder why Cheney had ordered Libby to leak the NIE–and whether Bush knew about it–Cheney’s lawyer Terry O’Donnell leaked details he would have seen in Cheney’s Fitzgerald interview (though they are probably inaccurate in some key ways) to Michael Isikoff.

Two days after the Fitzgerald disclosure [reiterating that Libby had said that Cheney and Bush authorized his leaks], Cheney’s lawyer told reporters that the president had "declassified the information and authorized and directed the vice president to get it out" but "didn’t get into how it would be done." Then the vice president had directed his top aide, Scooter Libby, to supplyis the information anonymously to reporters. [my emphasis]

Largely because Isikoff reported this unquestioningly (even though it was logically inconsistent with the publicly available facts known at the time) this story became the new conventional wisdom about the leak. Reporters focused exclusively on the NIE leak–even though Libby’s story that he had been ordered to leak the NIE and not Plame’s identity had big logical problems–and away from Cheney himself.

In other words, O’Donnell chose to leak the contents of Cheney’s Fitzgerald interview (presumably with the consent of his client) so as to alleviate the political pressure and scrutiny on Cheney’s role in Plame’s outing. 

That sure seems like explicit consent to me. 

But now look at the government’s argument–their real claim as to why releasing Cheney’s interview materials will "chill" investigations.

MR. SMITH: But I think you have to anticipate that it’s going to happen again some day. And what the Justice Department doesn’t want is to become an information finder for the President or Vice-President’s political enemies. We want to be in a position where we can get all of the information to do a criminal investigation of an important possible crime but not be, you know, fact finders for political opponents in Congress or political opponents in other areas of the country.

Smith believes that the only people who could conceivably want Cheney’s interview materials are his "political opponents." He further suggests that releasing Cheney’s interview materials would go far beyond what the law enforcement process did.

As a reminder, the "Conclusion" of the Libby trial–Fitzgerald’s closing rebuttal–was this:

And you know what? [The Defense] said something here that we’re trying to put a cloud on the Vice President. We’ll talk straight. There is a cloud over what the Vice President did that week. He wrote those columns. He had those meetings. He sent Libby off to Judith Miller at the St. Regis Hotel. At that meeting, … the defendant talked about the wife. We didn’t put that cloud there. That cloud remains because the defendant has obstructed justice and lied about what happened.

[snip]

He’s put the doubt into whatever happened that week, whatever is going on between the Vice President and the defendant, that cloud was there. That’s not something we put there. That cloud is something that we just can’t pretend isn’t there.

Fitzgerald said the cloud over Cheney’s actions during the week of the Plame leak remains because Libby obstructed justice and lied about what happened. And the jury agreed with Fitzgerald. (Not only that, but according to one juror with whom I spoke, the jury also found the NIE story to be bogus, though it was not what they were directed to judge, so they put it aside.)

That was the conclusion of the law enforcement process: with citizens unable to learn what the Vice President did because Libby obstructed justice and lied about what happened.

Yet DOJ–the Department of Justice!!!–believes that the only reason citizens would want to see Cheney’s interview materials is out of political opposition to someone already out of office. And that stance is all the more absurd given that Cheney’s lawyer, in an effort to obscure the anonymous leaking Cheney ordered out of political spite, has–for political reasons–anonymously leaked precisely the materials that DOJ now pretends shouldn’t be revealed because they might be used for political reasons.

This entire case was about the anonymous leaking of classified material for political gain, and now DOJ wants to ensure that that system of anonymous leaking remains intact, such that only those in power get to decide when and how they’ll leak this information.

Thankfully, that doesn’t seem to be Judge Sullivan’s understanding of how our system of government should work. As he had to remind both lawyers, FOIA is about the public’s right to know what our government is doing.

THE COURT: Well, FOIA is about the public’s right to know, that’s paramount.

MR. SOBEL: Subject to a showing of harm.

THE COURT: Put aside the harm for the time being. The paramount purpose of FOIA is that the people have a right to know what their government is doing. That’s the purpose of FOIA.

The people, Judge Sullivan says, have a right to know what’s behind that cloud over the (former) Vice President. DOJ considers breaking through a cloud created by obstruction of justice to be no more than political opposition. But it appears that Judge Sullivan doesn’t agree.

Let’s hope he sustains that belief and releases the Cheney materials. 

Because I am.

I find myself writing long weedy posts about Cheney’s role in the CIA Leak Case. And Karl Rove spent a long day answering questions about his role in a crime. (h/t fatster)

Former White House Deputy Chief of Staff Karl Rove was deposed Tuesday by attorneys for the House Judiciary Committee, according to Rep. John Conyers (D-Mich.), the panel’s chairman.

Rove’s deposition began at 10 a.m. and ended around 6:30 p.m, with several breaks, Conyers said.

Conyers would not comment on what Rove told congressional investigators, what the next step in the long-running Judiciary Committee investigation would be or whether Rove would face additional questioning.

“He was deposed today,” Conyers said in an interview. “That’s all I can tell you.”

Eight and a half hours? That’s a lot of questions.

Supposedly, there will be transcripts produced, Harriet and Karl will review them, and then we’ll all get our greedy little hands on them. Given that it’s summertime in our nation’s capital, it’ll take at least a few weeks for all that to transpire.

But we might get a Karl transcript before we get a Cheney interview.

You know how Obama’s DOJ claims that we can’t see Cheney’s interview with Patrick Fitzgerald because it’s privileged? Well, Dick Cheney’s own lawyer already leaked the so-called privileged content three years ago.

It appears that Dick Cheney’s lawyer, Terry O’Donnell, attended the interview. When Ted Wells asked David Addington at the Libby trial when he realized he was going to be a witness in the case, Addington explained that he was not permitted to attend Cheney’s interview, but Cheney’s lawyer was.

The point at which I knew I was likely to be a witness in the case was when the government went to interview the Vice President and indicated they would prefer I didn’t come and that only his private attorney come.

I’m interested in that because we know that Terry O’Donnell spread a cover story on the NIE leak–precisely the content DOJ now claims is privileged–to Michael Isikoff.

One of the details that most surprised me in Scott McClellan’s account of the CIA Leak investigation and aftermath was his description of the White House response to the confirmation–on April 5, 2006–that Libby had testified he had leaked the NIE with the authorization of the President.

Now the fact that he himself had authorized the selective leaking of national security information to reporters made him look hypocritical.

[snip]

In time, we would learn that the president’s penchant for compartmentalization had played an important role in the declassification story. The only person the president had shared the declassification with personally was Vice President Cheney. Two days after the Fitzgerald disclosure, Cheney’s lawyer told reporters that the president had "declassified the information and authorized and directed the vice president to get it out" but "didn’t get into how it would be done." Then the vice president had directed his top aide, Scooter Libby, to supply the information anonymously to reporters. [my emphasis]

[snip]

But it all made sense when someone pointed me to the one piece of journalism he could find repeating that citation–would you believe it, a Michael Isikoff piece?

A lawyer familiar with the investigation, who asked not to be identified because of the sensitivity of the matter, told NEWSWEEK that 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, when the press was beginning to raise questions about the WMD but before Wilson published his op-ed piece. [my emphasis]

I double checked with McClellen to make sure that’s the public statement he meant, and he said,

Dan Bartlett volunteered to me that the vice president’s lawyer was telling at least some reporters anonymously what I reference on page 295, which is specifically referring to the Newsweek article …

In other words, yes, Cheney’s lawyer was the one spreading that story to–of all people–Michael Isikoff.

So O’Donnell attended Cheney’s interview, and when Cheney’s role in the leak began to blow up, O’Donnell told Isikoff a story that distracted from the implications of Cheney’s role and reinforced the cover story.

Now, I’m skeptical that O’Donnell told a completely truthful story to Isikoff. There are reasons to doubt both O’Donnell’s claims about the date of the purported declassification and that Bush was not involved in selecting Libby to leak this. That’s the luxury of being an anonymous source for O’Donnell–Fitzgerald had no easy way of calling Isikoff’s anonymous source on any inaccuracies. But O’Donnell may well have been repeating lies Cheney told to Fitzgerald–we won’t know whether he accurately represented what Cheney said until we see Cheney’s interview materials.

In any case, it appears that O’Donnell spread this story after witnessing Cheney’s responses to questions from Fitzgerald about the NIE story. So presumably, the general story is what Cheney told Fitzgerald.

There are two or three references in Cheney’s interview to this issue.

Description of a confidential conversation between the Vice President and the President. (Page 12, lines 9-11) [Also, FBI notes on "apparent communication between Vice President and President" on interview outline] 

Vice President’s description of his role in resolving disputes about whether to declassify certain information. (Page 25, line 39 – page 26, line 1)

Vice President’s description of government deliberations involving senior officials regarding whether to declassify portions of the October 2002 National Intelligence Estimate. (Page 26, lines 8-10, 14-17, 24-26)

And according to Cheney’s own lawyer, who witnessed the interview, here’s how Cheney answered those questions.

… 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,

Obama’s DOJ wants to claim this conversation is covered by executive privilege. But we know that Cheney’s own lawyer has already spread the contents of that conversation.

Since there is still some confusion over the material from Dick Cheney’s interview with Patrick Fitzgerald that, DOJ says, cannot be made public, I decided to provide a more detailed description of what was in the interview with handy links for any media outlets that are too busy selling access to lobbyists to do their own work. What follows are the page-specific references in the DOJ FOIA response to material that appears in the FBI report of the interview. That document is 28 pages long, total, so this is a pretty good outline of what’s in the interview. I treat information that appears on the same page together, so a couple of these descriptions cover a number of separate issues raised in the filing.

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); The name of a covert CIA employee (Page 3)

As you recall, Libby first learned of Valerie Plame’s covert identity from a conversation with Dick Cheney some time during the week of June 9, 2003. He recorded his conversation with Cheney in a note which was a central focus of Libby’s grand jury testimony. When asked, Libby said Cheney may have learned of Valerie’s status from Tenet. And, when Fitzgerald was questioning Libby about Cheney’s notations on Joe Wilson’s op-ed, Libby explained that Cheney had asked Tenet earlier in June or July about the CIA sending ambassadors to gather information.

Q. When the Vice President asked you the question, "have they done this type of thing before," question to that effect, Vice — did the Vice President ever ask you has the Agency ever done this sort of thing before where an ambassador was sent out?

A. I think he may have at some point.

Q. And what did you do in response to that question, if anything?

A. I don’t know if I did anything particularly about it. I think he may have taken it up with, with Tenet rather than asking me.

[snip]

Q. What did he talk to the official that you do know he talked about?

A. About, you know, how this came about. I have a sense that he had talked to Tenet or somebody about, about that.

Q. And what time frame was that?

A. Summer, June, July, something like that.

In other words, this conversation appears to be the conversation Cheney had during the week of June 9 in which he learned of Plame’s identity. That makes the reference to "a covert CIA employee’s identity" all the more interesting. While that might be a reference to Valerie’s colleague who first suggested sending Joe, it might well be a reference to Valerie herself. While we know the CIA still wants to hide details of Plame’s career, it would be the height of absurdity if CIA tried to prevent us from seeing Fitzgerald ask Cheney about Plame.

In any case, DOJ is probably attempting to prevent us from learning of Cheney’s account of how he learned of Plame’s identity before he passed it on to Scooter Libby.

Names of a foreign government and liaison services. (Pages 2, 7, 9)

The names of foreign governments appear just before the discussion of Cheney’s conversation with Tenet and before the discussion of the oppo research OVP did the week of June 9, 2003. This means discussions of Niger is almost certainly one of the countries mentioned, but a discussion of the Niger claim more generally may have elicited a discussion of the British White Paper (to which the uranium claim in the State of the Union was purportedly attributed) and Italy, where the forgeries came from.

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); Name of a CIA briefer. (Page 6, line 41); The methods CIA uses to assess and evaluate intelligence and inform policy makers. (Pages 6, 16, 17)

On February 13, 2002, Cheney asked his briefer, David Terry, for an assessment of the report that Iraq was attempting to purchase uranium from Africa. The following day, CIA provided Cheney with a review of the Niger claims and told him clandestine services would seek additional information. This information–along with Terry’s name–has already been made public in significant part.

Then, on June 9, 2003, apparently in response to Bush voicing concern about Joe Wilson’s then-anonymous Niger allegations, OVP made multiple requests for information from CIA. Libby asked his briefer, Craig Schmall, for information during the briefing. Schmall later gave Libby verbal assurances that there was no record that OVP knew of Wilson’s report, then faxed over a bunch of information (including the earlier tasking). That same day, Hannah wrote a memo summarizing all the information from CIA. Some time in the next day, Cheney presented a story that, by that point, he should have known was inaccurate to John McLaughlin at CIA, along with some questions.

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, as noted above, Cheney also, apparently, spoke directly with Tenet.

Then, having received information from Schmall, McLaughlin, and probably Tenet, Libby called Robert Grenier while he was meeting with Cheney and Cathie Martin to ask the same questions. 

Now, the reference in the DOJ filing may just relate to Cheney’s February 2002 request. Or, it may relate to the relentless requests from OVP to CIA the week of June 9, 2003 which resulted in Cheney learning of Plame’s identity and passing it on to Libby. But in any case, much of this information–along with the names of the two CIA briefers involved–has already been made public. 

DOJ, however, doesn’t want Americans to see whether Cheney’s version of all this matches that presented in detail at trial.

Description of a confidential conversation between the Vice President and the President. (Page 12, lines 9-11) [Also, FBI notes on "apparent communication between Vice President and President" on interview outline] 

The "conversation between the Vice President and the President" could be one of several things; Fitzgerald did ask, for example, whether Libby’s notation of Bush’s concern about the Niger allegations on June 9, 2003 came through Cheney, and (as I’ll show), Scottie McClellan believes Cheney spoke to Bush personally about exonerating Libby. 

But the most likely conversation in question pertains to whether and how Bush authorized Cheney to insta-declassify a range of materials to rebut Joe Wilson. Of particular note, Libby described Cheney reassuring him that he had talked to Bush about insta-declassifying material that Libby subsequently leaked to Judy Miller and others.

Q. And do you know when the Vice President talked to the President to get the permission for you to discuss this with the press and in effect in your mind declassify the document?

A. No, sir.

Q. And were you present for that conversation?

A. No sir.

Q. What did the Vice President tell you about that conversation?

A. He told me he had talked to the President and we should go ahead and, you know, talk to the press about the 

Q. And do you know if the Vice President told the President what the legal issue was in terms of sharing (classified information?

A. I don’t know what happened in that conversation. But the Vice President knew that we needed to have the President’s authority to talk about the document, or that section of the [NIE].

[snip]

Q. And do you know if the Vice President and the President talked about it in person or by telephone?

A. I don’t know.

This was a conversation which Fitzgerald asked Libby about numerous times, one which went directly to the issue of whether Cheney’s orders to Libby to leak information were legal or not. So it is likely that Fitzgerald asked Cheney about this directly.

But DOJ doesn’t want us to know whether or not the President of the United States authorized his Vice President to insta-declassify a bunch of information, up to and possibly including a CIA officer’s identity, or whether the Fourth Branch just made that decision on his own.

Names of non-governmental third-parties and details of their extraneous interactions with the Vice President. (Page 14, lines 25-28, 29, 33-34, 36)

While we can’t be sure, it is likely Fitzgerald asked Cheney about his direct contacts with journalists, particularly Andrea Mitchell, with whom Cheney dined (at a dinner honoring Mitchell’s husband, Alan Greensppan, and President Ford) just before Mitchell called Joe Wilson and told him the White House had told her "the story" was Wilson’s wife. Cheney may have also had contacts with other journalists that–so long as he maintained that Plame and Wilson didn’t come up–might be described as "extraneous interactions" with Cheney.

Vice President’s recollection of the substance of his discussions with the National Security Advisor while she was on a trip to Africa. (Page 15, lines 17-21); 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. (Page 15 , line 28 – page 16, line 2; page 16, lines 14-18, 25-33)

There are various reports of how, when Wilson’s op-ed came out, there was a squabble between NSC and CIA over who would take responsibility for the 16 words in the State of the Union. At first (according to reports), Condi accepted she would have to share responsibility for the 16 words with the CIA. But some time along the way, Condi changed her mind and publicly blamed Tenet for it all.  After which, in a public statement, Tenet took some responsibility while at the same time making it clear that CIA was not entirely to blame.

We know a substantial amount of the negotiations that went into this. Both Libby (in his grand jury testimony) and Cathie Martin (in her trial testimony) described the process. In addition, we’ve got two documents that describe Cheney’s role directly.

Notably, Libby took notes during a July 10, 2003 meeting between himself, Cheney, and McLaughlin. Libby quotes Cheney as saying, "Anything less than full and complete disclosure is a serious mistake." Libby’s notes include a "CP"–Libby’s abbreviation for CounterProliferation and/or Colin Powell–written in the margin next to Hadley’s statement, "Wilson is declassified."  And he records Hadley passing along the news from Condi that she "spoke to [the President], he’s comfortable."

In addition, we have the draft of Tenet’s statement received by the White House. In what appears to be Cheney’s handwriting, the statement is marked "unsatisfactory."

In other words, it’s clear that Cheney was pushing CIA for greater disclosure in these negotiations, that he was pissed at Tenet, and some of his precise statements have been revealed already.

What hasn’t been revealed are details his conversation with Condi Rice. I suspect–though it’s just a guess–that Cheney convinced Condi to back off any admission that NSC was to blame for the 16 words. Ultimately, we know that even with Condi blaming Tenet, Cheney was still unsatisfied.

But DOJ doesn’t want to flesh out this picture.

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. (Page 23, lines 29-40)

As I explained the other day, the reference to "White House Communications Director" (that is, Dan Bartlett) and the reference to discussions of an "appropriate response to media inquiries about the source of the disclosure of Valerie Plame Wilson’s identity as a CIA employee" make it clear that this discussion pertains to the meat-grinder note, and Cheney’s intervention to make sure Scottie McClellan exonerated Libby in the same way he had exonerated Rove.

Libby described the events this way in his grand jury apearance.

Q. Did you seek the Vice President’s help to make sure that Andy Card got the message that this is something you’d really like to have happen?

A. At some point I did.

Q. And what did you do?

A. Told him that I thought it was unfair that they had — Scott McClellan had said something about Karl Rove and not something about me since I didn’t talk to Novak either. And — or I shouldn’t say either. Since I was not, I was not the source of the leak to Novak, and told him that I, I thought, you know, it should be fixed. What I can’t remember whether I had this conversation with him the first time I got rejected or the second time. I’m pretty sure I had that conversation with him at some point. You know, it could be that the second time they just did it without his, without his intervening, and the first time they didn’t. I just — I
don’t t recall.

Q. Do you recall if the Vice president ever picked up the phone and called back to Card or McClellan and let them know that this was something he wanted to see happen?

A. I hope he did. I don’t recall that I ever — and he may have told me that he had, I just don’t recall whether it was the first time and we failed or the second time and we succeeded. I don’t, I don’t remember.

And David Addington described learning from Dan Bartlett that Cheney had made that call.

I had a conversation not too many days [after McClellan exonerated Libby] with Dan Bartlett, who was then the assistant to the President for communications.  And by this point, something had been said–I frankly don’t remember what–again, by the press office, and it included Mr. Libby this time. And I made the comment to Mr. Bartlett, you know, I don’t know why you are making these statements about, you know, this case–and I will explain why in a second. But his reaction was, "Well, your boss is the one that wanted us to do it." And then I shut up.

Finally, Scott McClellan describes his understanding of what happened in his book.

That Saturday, October 4, was a relaxed, casual morning for me as I lounged around my single-bedroom, downtown apartment reading the Washington Post and the New York Times. 

[snip]

The call from Andy Card came around 8:30 A.M. "The president and vice president spoke this morning. They want you to give the press the same assurance for Scooter that you gave for Karl. (217)

In short, we have Cheney’s talking points regarding this issue in his own handwriting, and multiple pieces of first-hand testimony describing how Cheney intervened to have Libby exonerated. There is, admittedly, some discrepancy over whether Cheney called Card, Bartlett, or Bush directly.  

That’s precisely the kind of discrepancy that Cheney’s FBI interview might clarify. But DOJ claims that–even with all this public information about the incident–the information is still protected from FOIA.

Vice President’s description of his role in resolving disputes about whether to declassify certain information. (Page 25, line 39 – page 26, line 1); Vice President’s description of government deliberations involving senior officials regarding whether to declassify portions of the October 2002 National Intelligence Estimate. (Page 26, lines 8-10, 14-17, 24-26)

As I pointed out the other day, DOJ describes two discussions pertaining to declassification, though the first–about Cheney’s "role in resolving disputes about whether to declassify certain information"–shortly precedes the discussion about "deliberations involving senior officials regarding whether to declassify portions of the October 2002 National Intelligence Estimate." Now this almost certainly relates to two things. First, to Libby’s claim that Cheney ordered him to leak the NIE to Judy Miller on July 8. Fitzgerald would have been probing when Cheney claimed the NIE had been declassified–and whether it was actually the NIE or other materials (such as the report from Wilson’s trip) and/or Plame’s identity itself.

By the time Fitzgerald did this interview on May 8, 2004, he knew several things that undercut Libby’s claim that the super special leak he made to Judy was the NIE. Fitz knew already that Scooter Libby discussed the NIE with David Sanger on July 2, with Cathie Martin present and taking notes. He knew Cheney had told Cathie Martin to leak the NIE more generally. And he knew that Cheney had had Paul Wolfowitz leak the NIE–and the January 24, 2003 excerpt of it–to the Wall Street Journal.

Q. Do you know if you spoke to the Wall Street Journal prior to July 18th about the NIE contents before the July 18th date came around and made the NIE publicly available?

A. I did not.

Q. Do you know who did?

A. Secretary Wolfowitz did.

(Fitz would later learn that Libby leaked the NIE to Woodward in June, but I don’t think he knew that yet.)

And, in addition to the January 24 document, Fitzgerald knew that there were discussions about leaking the report from Wilson’s trip (material from which ended up in Novak’s column). Cheney even made a reference to "Tenet, Wilson, and memo" on the meat-grinder note.

 Q. Now, continue on the document, and I’ll just finish off the shortest piece. There’s handwriting on the left that says, appears to say, "Tenet, Wilson and memo,I1 above the three hole punch.

A. Yes, sir.

Q. And do you know whose handwriting that is?

A. Looks like the Vice President’s.

So by the time Fitz conducted this interview, he knew Libby’s claim that the special leak to Judy was the NIE was problematic, since OVP was leaking the NIE left and right by then and since there was a lot more OVP was leaking.

Then there was the other problem. Libby claims Bush insta-declassified the NIE to leak to Judy (and only Judy), but he admitted that in the repeated discussions of declassifying the NIE during and after leak week, neither Libby nor Cheney ever told others they had already insta-declassified it.

Q. And going up to July 18th, is it fair to say that there were a number of different conversations within the administration about declassifying the NIE?

A. Yes sir.

Q. And during those conversations did you ever tell any of the other people that in fact the President had already declassified the NIE in your mind?

A. No, sir.

Q. And in your presence did the Vice President ever tell these other people that you understood that the NIE had already been declassified?

A. No, sir.

Q. And as far as you know, was the CIA or Director Tenet ever notified that the NIE had been declassified in your mind as of July 8th with regard to those portions concerning uranium?

A. No, sir.

Q. And were there conversations in which Mr. Hadley discussed declassification of the NIE?

A. Yes, sir.

Q. Were there conversations where Dr. Rice discussed declassification of the NIE?

A. Yes, sir.

Q. Were there conversations in which Andrew Card, the Chief of Staff, discussed declassification of the NIE?

A. Yes, sir.

Q. And during all those conversations it remained unknown to them that in fact you understood that the NIE had already been declassified?

A. By the President. Yes, sir.

Q. And is it fair to say that on July 10th the Vice President, according to your notes, indicated that he would recommend to the President declassification of the relevant parts of the NIE?

A. My recollection is that’s what he was telling Steve Hadley should pass on to Director Tenet, that they wanted to get those portions declassified and then they were declassified.

Q. And so in your mind, the Vice President was telling Steve Hadley to tell George Tenet that we, the Office of Vice President, would recommend declassification even though at the time, according to your account, both he and you knew that the NIE had already been declassified?

A. Yes, sir.

Q. And is it fair to say that in the following conversations during that week there are a number of conversations where people discussed declassification where
you and the Vice President knew that in your mind the President had already authorized you to discuss this with the press? Correct?

A. Yes, sir.

Q. Was that unusual for you to have the National Security Advisor, Director of Central Intelligence and the White House Chief of Staff, among others, in the dark as to something that you had done regarding declassification?

Fitz is obviously incredulous about this story. It undercuts Libby’s entire story about having been ordered by Cheney to leak the NIE to Judy Miller. Given that this exchange occurred just 45 days before the Cheney interview, it’s highly likely that the questions Fitz asked Cheney about "deliberations" on whether to declassify the NIE probes this bogus story further.

Both aspects of this story–whether the Vice President believed he had the authority to unilaterally and secretly declassify things, and whether it was the NIE or something else he had ordered Libby to leak to Miller–go to the heart of how our government abuses rules on classification and declassification. It’s a story that we, as citizens, need to be able to take on directly.

But DOJ says we can’t get Cheney’s own version of these two incredible stories.

Update: In his GJ appearance, Libby said he probably didn’t ask Schmall for info at the briefing, suggesting it was later.