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The Attorney General Thinks It’s Okay for the Vice President to Have Ordered the Outing of a Spy

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Now we know why Attorney General Mukasey is willing to write such ridiculous letters in the service of hiding Vice President Cheney’s role in the outing of CIA spy: he apparently thinks it’s no big deal that the Vice President ordered the outing of a CIA spy.

At least that’s the implication of this exchange between Mukasey and Arlen "Scottish Haggis" Specter (34:00 to 36:01):

Specter: Moving to reporters privilege in the limited time left. Attorney General Mukasey what was the justification for keeping reporter Judith Stern [sic] in jail for 85 days when the source of the leak was known to be Deputy Attorney General [sic] Richard Armitage?

Mukasey: As you know I was not on duty when that case came to the fore, and it’s my own view that that case may very well be a better argument against the Special Counsel than it is in favor of legislation of the sort that’s been proposed.

Specter: I’m not prepared to deal with the Special Counsel because he’s not here. If I had Senator Leahy’s gavel, I would have brought him in here a while ago, once the case was finished. But it’s very germane in evaluating public policy on whether the Department of Justice ought to have the authority to issue a subpoena in the context and move for a contempt citation and hold a reporter [sic] in jail under very unpleasant circumstances. I can attest to that first hand–I went to visit her.

Mukasey: There’s no such thing as jail under pleasant circumstances. It is an inherent contradiction. It is something that therefore we use as a last resort, and we’re gonna continue to use as a last resort.

Specter: Well, why’d you need a resort when you know the leak? When you know who the leaker is, why go after a reporter or keep her in jail?

Mukasey: As I said, that was not…

Specter: I know that would be better addressed to the Special Counsel.

Mukasey: It would.

Specter: Someday we may have an opportunity to do that. But right now, you’re the one we’ve got, Attorney General Mukasey. You’re the guy who’s pushing a policy. So I think it’s a fair question to say to you, why maintain a policy that gives whoever the prosecutor is the power to do that when you know who the leaker is.

Mukasey: We don’t give that power to a prosecutor, for precisely that reason. Read more →

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Waxman, Fitzgerald, and Mukasey

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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 →

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DOJ’s Attempt to Shield Obstruction of Justice

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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 →

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Fitzgerald’s Successful Argument to Keep the Bush and Cheney Reports Out of Discovery

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Back in the discovery period leading up to Scooter Libby’s trial, Ted Wells made a valiant attempt–based on Fitzgerald’s notice that he was going to include reference to the insta-declassification of the NIE–to get Bush and Cheney’s interview reports in discovery. But, as far as I can tell from the available record, Wells failed. Fitzgerald argued that, so long as he was willing to stipulate that the leak of the NIE on July 8 was not illegal, then any discovery of the Bush and Cheney reports would count as Jencks, and therefore he would only be obligated to turn them over if the government called Bush or Cheney to testify.

Given the fact that Mukasey appears to have claimed he can’t reveal the reports for some crazy reason, I thought I’d lay out this argument. Nowhere does Fitzgerald explain that he couldn’t turn over the reports–only that he doesn’t think he has to, unless Judge Walton orders him to do so.

MR. WELLS: Your Honor, with respect to the issue of the NIE, as Your Honor knows, Mr. Libby testified that he had discussions with Ms. Miller concerning the NIE based on expressed instructions from the vice president and with the understanding that President Bush had declassified the document. This is a case that concerns unauthorized disclosure of classified material. To the extent that Mr. Fitzgerald is in possession of documents or grand jury material or interviews that establish that, in fact, the vice president and the president were aware that those documents had been declassified, he should turn them over because I do not want to be in a position during this trial that there is some question that Mr. Libby, in disclosing that material to Ms. Miller, did anything wrong.

THE COURT: But the government is not alleging any violation of the law regarding that.

[snip]

THE COURT: You are not challenging whether there was a declassification of that information at the time it was produced?

MR. FITZGERALD: We’re not challenging the declassification authority as of July 8. What he is asking now is Jencks. And that’s what we kept writing in our briefs, we don’t turn over Jencks material before trial. Now we’re asking for grand jury testimony. It is not an issue. The NIE is not mentioned in the indictment. Read more →

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

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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 →

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What Is Michael Mukasey Helping Dick Cheney to Cover Up?

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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 →

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A Response to Dean: The Failure, So Far, Has Been Congress’

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John Dean thinks Patrick Fitzgerald may have gone soft on the White House.

If McClellan’s testimony suggests that Special Counsel Patrick Fitzgerald, for any reason, gave Karl Rove and Dick Cheney a pass when, in fact, there was a conspiracy – which is still ongoing – to obstruct justice, then these hearings could trigger the reopening of the case. But this is a pretty large “If.”

[snip]

As experienced a prosecutor as Fitzgerald is, he was playing in a very different league when investigating the Bush White House. These folks make Nixon’s White House look like Little Leaguers – and based on what is known about the Plame investigation, I have long suspected that Fitzgerald was playing out of his league. (See, for example, here and here.)

I would counter Dean and suggest it was not Fitzgerald, but Congress, which dropped the ball.

Dean suggests that we don’t know what Fitzgerald found.

Yet since no one knows what Fitzgerald learned, except those who cannot speak of what they know, it is not possible to determine whether he might have been outfoxed by the White House.

Um, not quite. While it is true we don’t know the contents of Rove’s grand jury appearances nor those of many other key players, we do know quite a bit beyond the details surrounding Libby’s narrow perjury charge. With the caveat that some of the following can only be supported with circumstantial evidence, here’s what we do know:

  • Dick Cheney declassified Valerie Wilson’s identity (either with Bush’s implicit or explicit approval) and told Libby to leak it to Judy Miller. He may have instructed Libby to leak details about her name and status to Novak during his July 9 conversation as well. But since he declassified Valerie’s identity, the legal status of that leak is–at best–unclear. After that leak, those in the White House who knew about it operated as if it was a legal leak of non-classified information.
  • The stories of Rove, Armitage, Novak, and Libby have significant discrepancies, meaning (in spite of what the Administration’s backers claim) we don’t yet have an adequate explanation for the leak to Novak. Probably, some of Rove’s testimony was perjurious, but there is no credible witness to that fact (since Armitage was himself either lying or a terrible witness), so it would be difficult to charge. Read more →
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Fitzgerald to Conyers: “Okay, Now I’m Ready to Talk”

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Thanks to BayStateLibrul for pointing out this provocative comment from Patrick Fitzgerald after yesterday’s Rezko verdict:

The White House Rasputin, Karl "The Architect" Rove, also was mentioned in the trial, as was former House Speaker Dennis "Don’t Ask Me About My Land Deal" Hastert, alleged to have been part of an effort by the bipartisan Illinois Combine to get rid of Fitzgerald. To demonstrate their kinship, Cellini and Rezko flew out to Washington on a play date and visited a White House reception with President Bush, where Kjellander joined them.

Later in the Rezko trial, two witnesses said that Rezko told them not to worry about the criminal investigation, because the Republicans—Rove and Kjellander—would get rid of Fitzgerald. Hastert would install a friendly federal puppy who wouldn’t bother the Combine, according to the testimony. "The federal prosecutor will no longer be the same federal prosecutor," testified Elie Maloof, a Rezko associate who is now a cooperating witness.

And a state pension board lawyer who has already pleaded guilty told grand jurors that Cellini told him "Bob Kjellander’s job is to take care of the U.S. attorney."

The Illinois Republican Party holds its own convention this week in Decatur. The party establishment, which has long been cozy with the Daley Democrats at City Hall, has done little or nothing to rid the Illinois GOP of Kjellander and Cellini influence.

"If I owe a response [about the putsch to remove him from his job], I owe it to Congress, first," Fitzgerald said when asked about all this after the verdict. [my emphasis]

Well, now that you mention it, Fitz, I seem to recall that Congress did ask you questions about this issue–questions that you obliquely passed on because of an ongoing criminal trial.

But that’s not the version of the "what if you got fired" question that I find most interesting. Rather, there’s a question that asks specifically if Fitzgerald became aware of efforts to fire him during the course of the CIA Leak investigation. Fizgerald refuses to answer … because of the ongoing Rezko case.

[snip]

During the CIA leak investigation, were you aware of any conversations that you might be asked to resign? If so please describe all such conversations, including the substance of the conversations, when they occurred, and the names of those who participated.

Read more →

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Now This IS Interesting Scottie McClellan News

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Back in November, when Scottie McClellan’s publisher first started to pitch Scottie’s book, he made a stir when he posted the following blurb about the book.

The most powerful leader in the world had called upon me to speak on his behalf and help restore credibility he lost amid the failure to find weapons of mass destruction in Iraq. So I stood at the White house briefing room podium in front of the glare of the klieg lights for the better part of two weeks and publicly exonerated two of the senior-most aides in the White House: Karl Rove and Scooter Libby.

There was one problem. It was not true.

I had unknowingly passed along false information. And five of the highest ranking officials in the administration were involved in my doing so: Rove, Libby, the vice President, the President’s chief of staff, and the President himself.

That set off a minor firestorm, as people misread the plain language of the blurb to mean that Bush had knowingly asked Scottie McC to lie about Libby’s and Rove’s involvement in the leak of Valerie Wilson’s identity. As I pointed out then, the firestorm probably contributed to making little Scottie rich.

Scottie McC’s publisher has pulled off quite the coup–taken a detail that was, largely, already known, and used it to cause a stir about a book that will not yet be published for another 6 months. Already, Dodd is calling for an investigation, folks are calling for HJC or Waxman to hold a hearing. What the left has done is read one publishing blurb designed to generate this kind of buzz, and played right into the plan. Congratulations. You’re all making Scottie McC rich.

And while I still don’t advocate that you all go out and buy Scottie’s book (tell you what–I’ll buy it and tell you the interesting bits), this little revelation is interesting news.

McClellan also suggests that Libby and Rove secretly colluded to get their stories straight at a time when federal investigators were hot on the Plame case.

Read more →

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Rove Once Again Saying Things on Teevee He Claims He Can’t Say to Congress

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Thanks to TPM’s reader GB for watching Rove on Stephanopoulos so I don’t have to. Rove claims he shouldn’t have to appear before Congress because–in a different subpoena–the White House invoked executive privilege.

Rove: Congress–the House Judiciary Committee wants to be able to call Presidential Aides on its whim up to testify, violating the separation of powers. Executive Privilege has been asserted by the White House in a similar instance in the Senate. It’ll be, probably be asserted very shortly in the House. Third, the White House has agreed–I’m not asserting any personal privilege, the White House has offered and my lawyer has offered several different ways, if the House wants to find out information about this, they can find out information about this and they’ve refused to avail themselves of those opportunities.

Two things here.

First, the circumstances between this and the Senate subpoena are actually somewhat different. Rove’s documented involvement in the USA firings is actually much more minor than that in the USA purge. In the USA purge, he briefly attended on meeting at the White House strategizing how they would respond to Congress’ investigation and instructed the DOJ folks to come up with one story about what they said had happened. And some Republicans have said they asked Rove to fire Iglesias and later–in December 2007–that Rove told them Iglesias was gone. The discussions of what Rove did subsequent to those requests is based on anonymous sources claiming that Rove intervened directly. Those same anonymous sources, though, say that Rove had to get Bush involved personally, which would implicate the President and then–except insofar as someone was arguing that the firing constituted obstruction–executive privilege.

Here, though, we’ve got a sworn source saying she heard references to Rove directly contacting DOJ, bypassing the President and therefore bypassing executive privilege.

Also, given Rove’s involvement in Alabama politics, it’s hard to say whether his activities were those of a presidential aide or a powerful GOP operative.

In any case, the White House has not yet invoked executive privilege here. And a few things are going to make that harder to do. First, who will provide the legal review to justify it? Paul Clement did the heavy lifting the last time the White House invoked executive privilege here–but it pertained solely to the hiring and firing of USAs. Read more →

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