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Waxman, Fitzgerald, and Mukasey

In a response to Waxman today, Patrick Fitzgerald made it clear that Mukasey’s obstruction is the only thing standing between Waxman getting the Bush and Cheney interview reports. And Waxman is none too happy about it. Good.

In his letter, Fitzgerald confirms what has been clear thus far: because Bush and Cheney avoided the dangers of grand jury testimony, their interview reports are not protected under grand jury secrecy. But if Waxman wants them, he’s going to have to get them from Mukasey.

As to interviews which we have determined are not protected by Rule 6(e), we have provided responsive information to you, after allowing the appropriate executive branch agencies to review the documents consistent with the process described in my earlier letters. As discussed in prior correspondence, the Special Counsel team is not responsible for determining whether executive branch confidentiality interests will be asserted in response to particular requests by the Committee.

Consistent with the above process, I can advise you that as to any interviews of either the President or Vice President not protected by the rules of grand jury secrecy, there were no "agreements, conditions, and understandings between the Office of Special Counsel or the Federal Bureau of Investigation" and either the President or Vice President "regarding the conduct and use of the interview of interviews."

Shorter Fitz: blame Mukasey.

Which Waxman promptly did.

On June 16, 2008, the Committee on Oversight and Government Reform issued a subpoena to you for the production of documents relevant to the Committee’s investigation of the leak of the covert identity ofCIA officer Valerie Plame Wilson. You have neither complied with this subpoena by its returnable date nor asserted any privilege to justify withholding documents from the Committee. In light of your actions, I am writing to inform you that the Committee will meet on July 16, 2008, to consider a resolution citing you for contempt of Congress.

[snip]

The arguments you have raised for withholding the interview report are not tenable. When the FBI interview with the Vice President was conducted, the Vice President knew that the information in the interview could be made public in a criminal trial and that there were no restrictions on Special Counsel Fitzgerald’s use of the interview. Mr. Fitzgerald clarified this key point last week, Read more

DOJ’s Attempt to Shield Obstruction of Justice

I agree with bmaz. This letter from DOJ refusing to turn over the Bush and Cheney interview reports is a load of crap (h/t WO, who’s doing all the heavy lifting today). I’ve gotta go to a meeting, so check back later for (I hope) some real smack-down of DOJ’s crap. But here are the key passages.

In seeking to accommodate the Committee’s requests, however, we must take into account core Executive Branch confidentiality interests and fundamental separation of powers principles, and we must avoid taking steps that could compromise the effectiveness of future criminal investigations involving White House personnel. Consequently, as we have informed the Committee, we are not prepared to provide or make available any reports of interviews with the President or the Vice President fiom the leak investigation. To do so would allow Congress to obtain through access to Justice Department investigative files information that it otherwise could not gather through its own inquiry because of separation of powers.

Your various letters on this matter have explained that the Committee’s legislative purpose for its inquiry concerns the review of White House procedures for handling classified information. We have attempted to accommodate this interest by permitting the Committee to review the reports of interviews of senior White House staff, which contain some information relevant to this subject. However, these reports also contain considerable information detailing the internal White House deliberations and communications of senior White House staff concerning how they should respond on behalf of the President to public assertions challenging the accuracy of a statement made in the President’s State of the Union Address. The Executive Branch has important institutional interests in the confidentiality of such White House deliberations and communications, and we therefore accommodated the Committee’s interests by making interview reports of senior White House staff available for review but not copying, with limited redactions of presidential and vice presidential communications and personal information not germane to the leak investigation.

We are not prepared to make the same accommodation for reports of interviews with the President and Vice President because the confidentiality interests relating to those documents are of a greater constitutional magnitude. The President and the Vice President are the two nationally elected constitutional officers under our Government. Read more

Those Democratic Committee Chairs Aren’t COORDINATING, Are They?

Here’s a little timeline, just for fun.

May 30: Conyers troubled by McClellan’s revelations

June 3: Waxman writes to Mukasey, demanding Bush Cheney reports by June 10

June 9: Conyers schedules McClellan testimony for June 20

June 11: Mukasey has his underling reply to Waxman

June 16, 2008: Oversight subpoenas Mukasey for Bush Cheney reports

June 20, 2008: During McClellan hearing, Conyers announces he’s going to request the Bush Cheney reports

June 23, 2008: Due date on Oversight subpoena

June 24, 2008: DOJ tells Oversight to fuck off

June 26, 2008: HJC votes to subpoena Mukasey for a laundry list of documents

June 27, 2008: HJC delivers subpoena, including demand that Mukasey turn over the FBI reports on the Bush and Cheney interviews

June 27, 2008: Oversight requests documents from Fitzgerald

July 3, 2008: Due date for documents from Fitzgerald

July 7, 2008: Due date on HJC subpoena

Now, far be it for me to suggest that Henry Waxman and John Conyers–members of the same political party (!)–are in cahoots. In fact, all my experience with the Democrats since they’ve been in the majority makes me believe that the chances they’re working in tandem here are extremely small.

But still. Look at the dates. HJC only voted to subpoena Mukasey for the Bush and Cheney interview reports (and a laundry list of over materials) after Mukasey had already told Waxman to fuck off. And conveniently, Waxman has given Fitzgerald a deadline that comes before Mukasey’s deadline to hand over the reports to HJC.

You see, I can’t help but think that Oversight has a relatively weak claim to those interview reports. Ostensibly, they have asked for the reports to answer the following questions:

(l) How did such a serious violation of our national security occur? (2) Did the White House take the appropriate investigative and disciplinary steps after the breach occurred? ‘ And (3) what changes in White House procedures are necessary to prevent future violations of our national security from continuing?

In other words, Waxman has described the rationale of his request in terms of strict oversight roles–ostensibly to prevent someone else–besides the Barnacle, I guess–from outing CIA spy with impunity. DOJ has allowed Oversight to see (but not keep) interview reports showing clearly that Bush and Cheney not only didn’t launch an investigation into the leak. They obstructed justice, by exonerating Rove and Libby publicly. But if, given what Mukasey has seen and we haven’t seen, Bush and Cheney can claim they had declassified Plame’s identity before Libby and everyone else leaked it, well, then, the whole question of why they didn’t do an investigation is moot. Read more

What Is Michael Mukasey Helping Dick Cheney to Cover Up?

Never mind. I know the answer. Attorney General Mukasey is helping Cheney and Bush hide the fact that they played insta-declassification games that may have–though they’ll never tell–included leaking Valerie Wilson’s identity.

Apparently, DOJ responded to Waxman’s subpoena for the Bush and Cheney interview reports by telling Waxman to go fuck himself (h/t WO).

On June 16,2008, having been informed in writing by the Justice Department that it would not produce the interview reports of the President and Vice President, the Committee issued a subpoena for those interview reports, as well as other responsive documents not previously produced, with a return date of June23,2008. On June 24,2008, the Justice Department informed the Committee by letter that it would not comply with the subpoena and would not "provide or make available any reports of interviews with the President or the Vice President from the leak investigation."

Waxman appears to be calling DOJ on whatever grounds DOJ invoked when refusing to comply with the subpoena, because he’s asking Fitz for clarification on whether or not there was an agreement between him and the Barnacle Branch that would shield the FBI reports from any exposure.

To assist the Committee in evaluating the Department’s position, I request that you produce the following information to the Committee no later than July 3, 2008:

1. Documents sufficient to show the date and terms of all agreements, conditions, and understandings between the Office of Special Counsel or the Federal Bureau of Investigation and the President of the United States, regarding the conduct and use of the interview or interviews of the President conducted as part of the Valerie Plame Wilson leak investigation.

2. Documents sufficient to show the date and terms of all agreements, conditions, and understandings between the Offrce of Special Counsel or the Federal Bureau of Investigation and the Vice President of the United States, regarding the conduct and use of the interview or interviews of the Vice President conducted as part of the Valerie Plame Wilson leak investigation.

I’m guessing, but it appears that Mukasey has claimed that Fitz made some kind of agreement with Bush and Cheney, and that agreement prevents him from turning over their interview reports. But, as Waxman notes, these reports were among those that Fitzgerald determined "were not protected by Rule 6(e)."

Read more

How to Get the Transcripts

Skdadl asked, with due skepticism, whether Mukasey would ever hand over the Bush and Cheney transcripts. I was thinking about just that on my walk with McCaffrey the MilleniaLab. Here’s how I think–if HJC were to play it correctly–it might play out.

In his letter to Mukasey, Waxman used McClellan’s public statements to demonstrate the need to release the transcripts and FBI reports.

New revelations by fonner White House Press Secretary Scott McClellan raise additional questions about the actions of the President and the Vice President. Mr. McClellan has stated that "[t]he President and Vice President directed me to go out there and exonerate Scooter Libby." He has also asserted that "the top White House officials who knew the truth including Rove, Libby, and possibly Vice President Cheney – allowed me, even encouraged me, to repeat a lie." It would be a major breach of trust if the Vice President personally directed Mr. McClellan to mislead the public.

In his FBI interview, Mr. McClellan told the FBI about discussions he had with the President and the Vice President. These passages, however, were redacted from the copies made available to the Committee. Similar passages were also redacted from other interviews. There are no sound reasons for you to withhold the interviews with the President and the Vice President from the Committee or to redact passages like Mr. McClellan’s discussions with the President and the Vice President. [my emphasis]

Now, as I understand it, Mukasey didn’t actually turn over the transcripts themselves to the Oversight Committee–he just let them look at the reports. Nevertheless, some smart staffer on Waxman’s committee must have notes of the context of the redactions in McClellan’s FBI reports.

So the first thing HJC needs to do is get a copy of the notes that staffer took.

Then, they should address a question to Scottie that goes something like this:

Mr. McClellan, In the course of your interview with the FBI on November XX, John Eckenrode asked you about your discussions with Bush and Cheney regarding the Plame leak. Can you tell us what you said in response?

Now, there’s something odd I’ve been puzzling over. We know from Waxman’s letter that there are clear references to Bush and Cheney in McClellan’s FBI interview report. Read more

Waxman Closing in on Dick Cheney for Outing Valerie Wilson

Henry Waxman noted the same thing that I did about Scottie McClellan’s book. He noticed that Scottie McC’s book sure came close to saying Dick Cheney and George Bush were personally involved in the outing of Valerie Wilson.

New revelations by former White House Press Secretary Scott McClellan raise additional questions about the actions of the President and the Vice President. Mr. McClellan has stated that "[t]he President and Vice President directed me to go out there and exonerate Scooter Libby." He has also asserted that "the top White House officials who knew the truth – including Rove, Libby, and possibly Vice President Cheney – allowed me, even encouraged me, to repeat a lie." It would be a major breach of trust if the Vice President personally directed Mr. McClellan to mislead the public.

Now, I’ve been quietly trying to find out whether or not Michael Muksaey had handed over Bush and Cheney’s interview transcripts to Henry Waxman. Seeing as how he’s asking again, I’d say the answer’s no.

On December 3, 2007, I wrote to request that you arrange for the production of documents relating to Special Counsel Patrick Fitzgerald’s investigation into the leak of the covert identity of CIA officer Valerie Plame Wilson, including copies of FBI interview reports of White House officials. I appreciate that you have since made redacted versions of the interview reports of Karl Rove, I. Lewis “Scooter” Libby, and other senior White House officials available to the Committee.

I am writing now to renew the Committee’s request for the interview reports with President Bush and Vice President Cheney and to request unredacted versions of the interviews with Karl Rove, Scooter Libby, Condoleezza Rice, Scott McClellan, and Cathie Martin. I also request that the Department provide all other responsive documents that were approved for release to the Committee by Mr. Fitzgerald. [my emphasis]

And in the remainder of Waxman’s letter, he makes it clear that doing anything less than turning this information over to Waxman’s committee is a deliberate attempt to cover up the fact that Dick Cheney outed Valerie Plame, with Bush’s involvement.

In his interview with the FBI, Mr. Libby stated that it was "possible" that Vice President Cheney instructed him to disseminate information about Ambassador Wilson’s wife to the press. This is a significant revelation and, if true, a serious matter. It cannot be responsibly investigated without access to the Vice President’s FBI interview.

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Did George Bush Break the Clean Air Act?

The Clean Air Act does not allow the EPA Administrator to take cost into account when he sets new standards for things like ozone levels. Now, as Henry Waxman’s Oversight Committee makes clear, on several occasions, the EPA Administration changed his preferred policy to one much less beneficial for the environment after speaking to the White House.

In today’s hearing, Administrator Johnson repeatedly discussed costs, even while insisting that his final decision did not take cost into account. So Paul Hodes asked the obvious question: well, did the White House take cost into account, and then you take the White House’s counsel into account.

The law is very clear that EPA may not consider costs in setting a national air quality standard to protect the environment. The Supreme Court specifically addressed the issue in 2001, the court wrote that if EPA established a standard by ‘secretly considering the costs without telling anyone’ it would be grounds for throwing out the standard, because the administrator did not follow the law. I’m concerned that this is exactly what happened in this case. The record before this committee shows that the unanimous recommendation of the Clean Air Scientific Advisory Committee was rejected by you, Mr. Johnson, apparently on the basis of White House opinion or desire.

That’s when Administrator Johnson got all evasive. He was asked (the first several times by Hodes), whether the White House considered cost in its own consideration of the issue. When Johnson refused to answer that question, Hodes asked him to answer the much simpler question: whether he recalled talking to the White House about the ozone standard.

Johnson wouldn’t answer that either.

Johnson neither asserted executive privilege, nor explained on what basis he could refuse to answer questions about whether he recalled whether or not he had had a conversation with the White House about it.

That’s when Henry Waxman got pissed. Read more

Waxman Attempts to Plug Truck-Sized Loophole for Theft

Remember that truck-sized loophole for theft the Bush Administration created? The one that takes a rule that says contractors have to reveal contracting fraud, and adds a loophole for anyone doing business outside the US? Well, Waxman is on it:

On May 23, 2007, the Department of Justice (DOJ) requested that the Federal Acquisition Regulation be amended to “require contractors to establish and maintain internal controls to detect and prevent fraud in their contracts, and that they notify contracting officers without delay whenever they become aware of a contract overpayment or fraud, rather than wait for its discovery by the government.” DOJ believed such a rule was necessary because few government contractors voluntarily disclose suspected instances of fraud. DOJ proposed specific changes to the Federal Acquisition Regulation.

In response, on November 14, 2007, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council published a proposed rule on “Contractor Compliance Program and Integrity Reporting.” This rule requires contractors to have a code of ethics and business conduct, to establish and maintain specific internal controls to detect and prevent improper conduct in connection with the award or performance of government contracts or subcontracts, and to notify contracting officers without delay whenever they become aware of violations of Federal criminal law with regard to such contracts or subcontracts. The proposed changes to the Federal Acquisition Regulation closely track the DOJ proposal, with two primary substantive changes: the exemption for contracts to be performed overseas and a second exemption for contracts for commercial items.

On January 14, 2008, DOJ filed a comment on the proposed rule stating that “we do not agree with” the exemption for overseas contracts. According to DOJ, “[a]lthough these contracts may be performed outside the United States, the United States still is a party to these contracts and potentially a victim when overpayments are made or when fraud occurs in connection with the contracts. Under these circumstances, the government still maintains jurisdiction to prosecute the perpetrators of the fraud. Moreover, these types of contracts, which in many cases support our efforts to fight the global war on terror, need greater contractor vigilance because they are performed overseas where U.S. government resources and remedies are more limited.”

Read more

What They Didn’t Want McDevitt To Talk About…

Man, the documents released in the Oversight Document Dump will really make you queasy. They include:

Here’s a post on why the documents are astounding, wrt the Plame investigation. And here’s my liveblog on there hearing.

In the hearing there was quite a spat over whether Waxman could introduce the interrogatory above into the record (led by the inimitable Darrel Issa). In spite of the fact that they had spent an hour and the half on the phone with McDevitt, Republicans complained that they hadn’t had a chance to cross-examine him.

Here’s Tom Davis’ complaint about Waxman’s motion to enter the interrogatories.

McDevitt responded to interrogatories, he replied with 25 pages of answers. We spoke with McDevitt on Sunday afternoon. Reluctant to give testimony on the record. Our staff made it clear we want to examine him on the record. Personal investment in various technologies. We remain skeptical of the content of his interrogatories.

But Waxman pointed out that the reason McDevitt was unwilling to testify was because the White House had very sharply limited his testimony.

Waxman: Jan 30, McDevitt, scheduled interview, WH contacted him, told him not to discuss with the committee. McDevitt emailed, based on WH, there’s practically nothing I’m authorized to discuss. Given limitations placed by WH Counsel, he said it didn’t make sense to come in for interview. Majority and Minority sent him questions. He responded in writing. WH had chance to review those answers, cleared them without redactions. AFTER they got the answers, minority wanted to speak with him in person. Majority went to some length to accommodate them. Sunday night, Minority and Majority called to see whether he would come in for deposition. Answered 1.5 hours of questions from Minority. Minority now says it’s unfair to use any information bc they didn’t get oppty to question him. If Minority has a beef with anyone, it should be WH Counsel’s office.

In other words, Fred Fielding tried his damndest to prevent McDevitt from giving detailed testimony.

Which is why the areas of his interrogatory that hint at what the White House doesn’t want him to testify about are so interesting. McDevitt begins to get squirrely about answering questions when they ask him about meetings he had with Harriet Miers.

Read more

Waxman Hearing on White House Emails

Available here.

We’re having a fight already. Waxman moved to enter the report of Steven McDevitt into the record. This is the guy who reported that all the emails were missing. Apparently, from 2002-2006, he was responsible for managing White House system.

Waxman says we’re going to vote to put McDevitt’s testimony into the record.

Waxman: If it ain’t broke, don’t fix it. But that’s what WH did. Dismantled a functioning system and replaced it with something inadequate. Initiated its own study of missing emails in 2005, but now dismisses its own work as incompetent.

Davis: Committee is entitled to getting the emails. It’s the characterizations which we differ in opinion. 2002-2006 he was responsible for managing system. In his opinion 400 days of emails went missing. We learned that many of these were misfiled. McDevitt responded to interrogatories, he replied with 25 pages of answers. We spoke with McDevitt on Sunday afternoon. Reluctant to give testimony on the record. Our staff made it clear we want to examine him on the record. Personal investment in various technologies. We remain skeptical of the content of his interrogatories. White House says technical flaws in the 2005 search. 473 day gap reduced to 202. WH restoration effort continues and should continue.

Waxman: Jan 30, McDevitt, scheduled interview, WH contacted him, told him not to discuss with the committee. McDevitt emailed, based on WH, there’s practically nothing I’m authorized to discuss. Given limitations placed by WH Counsel, he said it didn’t make sense to come in for interview. Majority and Minority sent him questions. He responded in writing. WH had chance to review those answers, cleared them without redactions. AFTER they got the answers, minority wanted to speak with him in person. Majority went to some length to accommodate them. Sunday night, Minority and Majority called to see whether he would come in for deposition. Answered 1.5 hours of questions from Minority. Minority now says it’s unfair to use any information bc they didn’t get oppty to question him. If Minority has a beef with anyone, it should be WH Counsel’s office.

Read more