The Real Reason They’re Hiding Cheney’s Interview?
Ostensibly, DOJ is trying to withhold Dick Cheney’s interview materials for the following three reasons (in order of their centrality to the argument):
- Law enforcement privilege: If DOJ turns over Cheney’s interview, it will make future Vice Presidents unwilling to cooperate in investigations. This argument fails given the evidence that it has long been routine to release interview materials from high ranking White House figures, going back to the era of Cheney’s first White House job under Nixon, continuing through the investigation conducted parallel to the one Cheney participated in on Iran-Contra, and up through Bush’s predecessor, Clinton. Thus, Cheney’s cooperation itself proves the lie of DOJ’s argument.
- Deliberative and presidential privilege: Much of the contents of Cheney’s interview comprise his description of deliberations within the White House regarding how to respond to Joe Wilson. This argument fails, in significant part, because much of this was already released during the trial. Furthermore, with the knowledge of at least two other White House officials, Dick Cheney’s lawyer leaked key portions of this to Michael Isikoff in April 2006.
- National security classification: Finally, DOJ argues that it can’t turn over material already made public, such as the names of Cheney’s and Libby’s briefers, David Terry and Craig Schmall. DOJ and CIA may actually even be protecting the name of that secret CIA officer, Valerie Plame Wilson!
For the most part, this argument doesn’t make sense at all. Most importantly, the core argument–that releasing this interview will inhibit future cooperation–is belied by the last half century of history. Nevertheless, for some reason DOJ has decided to fight release of this document. That’s partly because, I think, this fight started last year, while Cheney still had sway to make it happen. It’s partly because of Obama’s fear of doing anything that would look political. Still, something must explain why Obama’s DOJ is making this crappy argument with such intensity. Something–aside from the defense of secrecy in general–must explain DOJ’s almost comical efforts to keep this interview hidden in spite of the long history of releasing similar interviews.
As I suggested in this post, their concern appears to be much more narrow. I suspect they’re not trying to protect the content of Cheney’s interview, in the abstract. Rather, they’re trying to protect the content because of what Cheney said.
In the hearing before Judge Sullivan on June 18, DOJ argued that if Sullivan reviewed Cheney’s FBI interview report, he’d see the degree to which Cheney was frank with Fitzgerald and that might persuade him why, if this particular interview were released, it would inhibit future cooperation.
But for the record, this particular 302 I think would demonstrate the kind of frankness that the Vice-President gave in this interview as he was trying to assist I assume, trying to assist law enforcement. And the kind of frankness that it can be virtually certain to disappear if documents like this routinely become public.
Then, in yesterday’s brief, DOJ noted that some of what Cheney said was dissimilar from any released before, and–more importantly–some of what Cheney said was not exactly like the information introduced into the record already on the same topics.
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. DOJ is unable to expand further on these differences in a public filing without disclosing the privileged information. DOJ can submit further analysis in camera if the Court so directs.
In both cases, DOJ offered to share the information with Sullivan to convince him that this information merited withholding.
One more thing. As I noted, DOJ is making a completely laughable argument that CREW is demanding "immediate" release of Cheney’s interview materials, even though this investigation concluded over two years ago. While there should be no legal distinction between immediate release or later release, that is a distinction they’re making. Significantly, they argue that releasing this interview in six years may be okay, but releasing it now would be problematic.
The Bush 302 was released six and a half years after his Presidency. It is quite possible, even likely, that, in 2015 or 2019 (six to ten years after Mr. Cheney left office), the release of the documents at issue here can be accomplished without impairment to law enforcement interests. DOJ has concluded, however, that this cannot be accomplished now.
Six years. Six and a half years. Six years. That’s when it’d be okay to release this, says DOJ. I’m going to suggest that the timing may have more to do with the magical six years than any connection to the end of Cheney’s tenure at VP.
What follows is speculative. It is an attempt to brainstorm out what kind of "frank" revelation Cheney would have made that would still have resulted in the subsequent actions we know Fitzgerald to have taken (notably, the subpoena to Judy Miller and the rest of the journalists), yet that DOJ still thinks should remain hidden.
The Not Identical and Not at All Similar Information
Curiously, DOJ is insisting–for an interview relating to an investigation that ended in a successful perjury and obstruction of justice charge–that Cheney gave Fitzgerald a "full account of relevant events." And they’re dismissing all the related evidence in the public record by claiming that the portions of the interview are either "not identical" or "not at all similar" to the material in the public record. Partly, this is just an attempt to claim that just because records of the actual deliberation have been released, that does not equate to a waiver for what is effectively Cheney’s summary of that deliberation. This is an attempt to say that original source documents–Libby’s direct quotes of Cheney’s statements regarding declassification of the NIE and other material, Cheney’s observation that Tenet’s statement was "unsatisfactory," CIA’s characterization of the qusetions that Cheney asked, and Cheney’s meat-grinder note written expressing his argument why Libby should be public exonerated in the same way Rove had been–are somehow less revelatory than Cheney’s description of them. Provided you buy my argument that DOJ has improperly applied a precedent to try to protect a summary after source documents have been released, then the only way this can be a valid argument (aside from protecting the Condi conversation and Tenet conversation, which have not been described in detail), is if Cheney’s summary does not match Libby’s (and Cathie Martin’s) summary presented at trial.
I suspect that the only way DOJ can honestly simultaneously claim that Cheney gave a "frank," "full account" of events but that his summary description of these deliberations must still be protected is if DOJ believes that Libby’s summary is inaccurate and Cheney’s is accurate.
I’m suggesting that the reason DOJ is fighting so hard to protect this material is that it differs in some key way from Libby’s testimony, and for some reason DOJ believes Cheney told the truth but Libby lied. And that Cheney was truthful about something more embarrassing than Clinton’s blowjob.
Some possibilities are (remember–this is speculative; also see Mary, ROTL, Garrett on this):
- Cheney admitted that he ordered Libby to out Valerie Wilson–to either Judy Miller or to just Matt Cooper
- Cheney insta-declassified the NIE (and the January 24 document and the trip report) on his own, as opposed to–as Libby claimed–with the involvement of Bush
- Cheney insta-declassified Valerie’s identity on his own
- Cheney learned of Valerie’s identity from some source besides Tenet–such as being shown the documents Valerie wrote in support of Joe’s trip
- Cheney told Hadley and Condi and Tenet and Card that he or Bush had insta-declassified some of these materials
Subsequent Events
But whatever Cheney said must be compatible with Fitzgerald’s and others’ subsequent actions. Some key points are:
May 2004: Just weeks after Cheney’s May 8, 2004 interview, Fitz subpoenas Matt Cooper and Tim Russert to test his then-operative theory that Russert had not told Libby of Plame’s ID, but that Libby had been Cooper’s source for her ID.
August 2004: Fitz submits an affidavit in support of subpoenas for Judy Miller and Walter Pincus stating:
…reporter Miller has been subpoenaed because her testimony is essential to determining whether or not Lewis Libby … has committed crimes including the improper disclosure of national defense information and perjury. Libby has admitted speaking to Miller in July 2003 and discussing the purported employment of former Ambassador Joe Wilson’s wife by the [CIA].
[snip]
Libby testified that he met with reporter Miller on [July 8, 2003] at the general direction of the Vice President to share with Miller portions of the [NIE]. … Libby specifically described he was advised by Vice President Cheney that President Bush had declassified the NIE…
There are redactions on page 8 (pertaining to whether or not Cheney told others in the Administration that he had insta-declassified the NIE), page 11 (footnoting a description of Libby’s admission that Cheney told him of Plame’s identity), page 13-14 (describing whether or not Cheney told Libby to leak Plame’s ID to Cooper), page 18-19 (pertaining to how Novak learned Plame worked in CPD, with a long footnote and further information on Rove’s conversation with Novak), page 19 (describing Libby’s contact with Novak that week), and page 30 (pertaining to whether the President and others have invoked privilege).
October 2005: Fitz indicts Libby for false statements, perjury, and obstruction of justice, but not IIPA or leaking defense information. Fitz makes no mention of the NIE story. The indictment includes many oblique references to Cheney (plus some explicit ones).
April 2006: Following up on a point that I first reported that February, Fitz releases a filing specifically implicating Bush and Cheney in the NIE leak and repeating Libby’s testimony that only he, Cheney, and Bush were aware of the NIE insta-declassification.
Defendant’s participation in a critical conversation with Judith Miller on July 8 (discussed further below) occurred only after the Vice President advised defendant that the President specifically had authorized defendant to disclose certain information in the NIE. Defendant testified that the circumstances of his conversation with reporter Miller – getting approval from the President through the Vice President to discuss material that would be classified but for that approval – were unique in his recollection.
[snip]
As to the meeting on July 8, defendant testified that he was specifically authorized in advance of the meeting to disclose the key judgments of the classified NIE to Miller on that occasion because it was thought that the NIE was “pretty definitive” against what Ambassador Wilson had said and that the Vice President thought that it was “very important” for the key judgments of the NIE to come out. Defendant further testified that he at first advised the Vice President that he could not have this conversation with reporter Miller because of the classified nature of the NIE. Defendant testified that the Vice President later advised him that the President had authorized defendant to disclose the relevant portions of the NIE.
[snip]
According to defendant, at the time of his conversations with Miller and Cooper, he understood that only three people – the President, the Vice President and defendant – knew that the key judgments of the NIE had been declassified. Defendant testified in the grand jury that he understood that even in the days following his conversation with Ms. Miller, other key officials – including Cabinet level officials – were not made aware of the earlier declassification even as those officials were pressed to carry out a declassification of the NIE, the report about Wilson’s trip and another classified document dated January 24, 2003.
In response–and with the knowledge of at least Dan Bartlett–Cheney’s lawyer explains the NIE leak this way:
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.
May 2006: Fitzgerald and Ted Wells discuss details of Bush and Cheney’s testimony. Wells claims to know that either Bush or Cheney "testified" that the NIE had been declassified and asks to have those interviews turned over. Fitz ends up agreeing only to stipulate that the NIE had been declassified by July 8, but not as to when it was declassified and (as I understand it) never turned over those interview reports.
WELLS: 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.
[snip]
MR. FITZGERALD: I will come back to that. Let me jump ahead. There’s no other discovery we have on it so it’s not like we’re sitting on documents or exhibits that
THE COURT: It is a moot issue. You don’t have anything on it.
[snip]
MR. WELLS: I started out making what I characterized as a Brady request to the extent that either the vice president or the president have testified that they did authorize disclosure.
THE COURT: Testified?
MR. WELLS: I’m making a Brady request. I believe there is testimony. I believe there is testimony or interviews.
THE COURT: I didn’t know they had testified.
MR. WELLS: I don’t know the procedure whether they talked to somebody in somebody’s office. But to the extent he has statements from either the vice president or the president, to the extent that disclosure of the NIE was authorized and I believe that maybe that the testimony does not tie it down to a particular day, only that it did take place, I believe I’m entitled to that.
[snip]
MR. FITZGERALD: Your Honor, I think they already do. Let me see if I can — in other words, if I summarize the information and disclose it as to what we know about this information, I mean there was an authority to declassify it. We don’t know when. So I don’t know what more there is to that in the sense that I’ll scrub it. But it’s not as if we’re sitting on — we have turned over relevant documents and items but that’s the way it is.
[snip]
MR. WELLS: It is, but if he’s going to say as he just suggested that if I were to say that when he talked to Mr. Woodward he did it with the understanding that he had been authorized and he is in possession of material from either the president or the vice president to the effect that it was declassified and that they know they did it but they’re not sure of the particular date but it was in that general area, I think I should have that material.
THE COURT: I do disagree with that because it seems to me that if he, as I said before, decides to go down that road and then once he does that the government brings out something during cross-examination or otherwise that would suggest that he wasn’t, in fact, being honest when he made that representation, then I think he is entitled to know that before he goes down that road.
MR. FITZGERALD: Your Honor, I will stipulate that the declassification happened. I don’t know when. The notion that we’re laying low in the tall grass and weeds I think is unfair.
December 2006: Fitz announces that he will not call Cheney as a witness. Libby’s team responds that they intend to call Cheney (they never do, though they do use his potential appearance during jury selection to weed out those opposed to the Iraq War and/or Cheney personally).
February 2007: Fitz closes the trial by describing the "cloud" that remains over Cheney.
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.
2007 to 2008: Reports–that may or may not be accurate–describe Cheney pressuring Bush to commute the sentence of and then pardon Libby. Bush does the first but not the second.
My Thoughts
From the subsequent events, we can conclude the following:
- Nothing in Cheney’s interview made Fitz rethink his theory that Libby had leaked Plame’s identity to Cooper, all the while knowing he had learned of her identity from Cheney (indeed, the redactions on pages 13-14 of Fitz’s affadavit suggest he may have asked Cheney about this–and remember, Libby once said he did leak to Judy on July 12).
- Fitz believed it likely he had leaked Plame’s identity to Judy, but he considered either that–or some of Libby’s other leaks (such as the NIE and/or the trip report) still potentially criminal. In fact, after reading Fitz’ affidavits later that year, Judge Tatel stated that after getting Judy’s testimony, "charges under the Intelligence Identities
Protection Act, 50 U.S.C. § 421, currently off the table for lack of evidence (see 8/27/04 Aff. at 28 & n.15), might become viable." Therefore nothing Cheney and Bush told Fitz convinced him in 2004 that the leak of Plame’s identity was legal. - Fitz at least claimed that Libby’s lies about when he learned of Plame prevented him from understanding Cheney’s role in the leak.
- Fitz didn’t want to give Libby’s team Bush and Cheney’s interviews, and he never planned to call Cheney.
I’m stumped, for now. Perhaps they’re trying to prevent new details on the fight with CIA–particularly the effort to trick CIA into revealing Plame’s ID (though that is, frankly, somewhat evident from the publicaly available evidence from the week of June 9). Perhaps they’re trying to hide information that Bush ordered Cheney and Libby to respond to Joe Wilson–and gave them carte blanche to do so. But this, again, is at least partly revealed in Libby’s June 9, 2003 notes and in the meat-grinder note.
Which leaves me with one more observation. DOJ is willing to see this released in several years, but not now. I’m wondering if that has as much to do with a 5 year statute of limitations as it has to do with anything else? Perhaps there’s enough evidence of Bush’s involvement in the leak that they want to avoid any questions of whether Bush obstructed justice when he commuted Libby’s sentence?
OT, Computerworld: The NSA wiretapping story nobody wanted
Whistleblower Mark Klein tells in his new book of how he was ignored.
Just got the book yesterday, I’ll be hosting Klein here for book salon the first weekend of Augsut (IIRC).
RE: Klein’s book and the press “ignoring” him…
Had someone like Klein approached a reporter with his story, my first question to the reporter would be, “Do you have two credible corroborating sources, at least one of which can go on the record?”
I believe Klein – but I can see how the mainstream media might have choked on this because of sourcing. It doesn’t excuse what they’ve done in the big picture on this story, but I can see how the media would have been initially challenged by the black room story.
Re: your interview with Pat, working title: It Takes Two from Amherst.
Couldn’t you do a “pretend interview” with your q’s, and his made-up “a’s”?
I’m thinking, it could be a mucho provocative essay…
everything adds up to me, conclusion to follow quotes;
here’s the information that does not want to go public;
cheney made the expansive claim that by virtue of him revealing the information declassified said information, he made the expansive claim that nothing else matters, he deemed it was in the best interest for “national security” to release that information and it would have been irresponsible not to release that information
that is what they do not want the public to see
why don’t they want the public to see that?
becuase they agree that’s why
I said this from the very first time cheney claimed pixie dust in some “executive order” giving him the ability to “declassify on the fly”
it’s also the reason fitz didn’t charge cheney, because that’s actually a case that might not prove succesful in court…that’s why cheney wasn’t charged, it’s why rove wasn’t charged
cheney made the expansive claim that by virtue of him revealing t
that is what they do not want the public to see
why don’t they want the public to see that?
becuase they agree that’s why
Oh, I think that there are **plenty** of people who disagree with what Cheney did, and more than a few that he screwed.
I seriously doubt that Adm Moro, or Ret. ? Janice Karpinski, or Ret Adm Fox Fallon, or a whole host of former government employees agree with Dick Cheney.
it’s obama and his doj that’s preventing the interview going public, not the people affected by cheney’s depravity
Yes, it’s Obama’s DoJ putting the brakes on and burying this stuff — for reasons that may well be exposed by LabDancer’s very thoughtful analysis on prior thread around @94.
But there also have to be many others in government waiting for what they view as a better moment to expose Cheney’s conduct. Because this thing just keeps kind of slowly seeping, week after week, month after month… Like a stain oozing out from under a doorway… silently… slowly… but steadily.
Well, for obvious reasons I favor this view.
But I’d also like to add a reminder to your earlier response @ 8, that:
[a] we actually had a discussion about pardon versus sentence commutation back around when Bush was being pressured for the former and then provided the latter, and
ion
[b] there were and are problems with granting a pardon that don’t arise with commutation, in particular that:
[1] a pardon is very construable as an admission of guilt, and at worst Libby and Cheney preferred inscrutability to that sort of construability;
[2] more importantly, it’s far easier for a lawyer acting for Libby to argue to a committee of Congress, House or Senate, that a commutation of sentence does not affect Libby’s right to take the 5th and refuse to answer questions pursuant to that, than it is for such a lawyer to protect Libby from contempt or further perjury charges where he’s been the beneficiary of a pardon.
To be clear: pardon = good for Libby, bad for Bush; commutation: good for Bush, bad for Libby. Cheney, however, would depend on Libby’s loyalty to him, such that Cheney’d be content to please Mr and Mrs Scooter with a pardon and then rely on his skills and markers as a beltway bureaucracy warrior to fight to avoid harm to Bush. I think Bush was advised, by Fielding and his own legal beagles, that it really came down to extending an avoidable unnecessary trust to Dick’s abilities, fidelity be damned, and Bush just didn’t like that bet as much as putting a lid on Scooter’s yap in the first instance. Moreover, to paraphrase the ancient knight charged with protecting the Holy Grail in that Indiana Jones movie, in my view Bush ‘chose wisely’.
Incidentally, one of the things DOJ sort of agrees is on point to the question of whether public disclosure is routine but too old for dumb old Cheney to remember?
Fred Fielding’s interviews during Watergate.
I think the statute of limitations hypothesis is probably on target.
One of the courtesies of the Presidents Club.
Keep up the good work ew. This will break open some day.
EW,
Your last sentence is a good hypothesis.
Thanks for laying out these details; makes it easier for someone else to play with the loose threads.
Bob in HI
They’re willing to see it released AFTER the 2012 elections. That’s as likely as statute of limitations. Obama really doesn’t want to have a “Rights of Terrorists” vs “Loss of American lives” debate right before the election.
Boxturtle (And that’s exactly how the GOP would frame it)
Definitely the most provocative and intriguing of the possibilities, IMHO. I fervently hope this is the reason, and also that it’s not the end of the ’story’ that still seems to have a whole lot of dangling bits wafting about in various breezes, stenches, dust devils, and undercurrents.
It just seems that if it WERE over, GWBush would have pardoned Libby. Why would he put up with Dick Cheney’s wrath by refusing to pardon Scooter Libby, unless Bush was being spiteful. (Admittedly, spite could explain Bush’s reason for not pardoning Scooter Libby, but why leave enemies behind needlessly when you’re off to the suburbs…? Plus, we have not seen a whiff of any Bush loyalists coming to Cheney’s defense.)
I believe bush was taken by surprise when he found out cheney exposed valery, I believe bush’s father went balistic and for the first time bush agreed with his dad
I believe this was the beginning of the end for bush trusting cheney
I think Bush43 was somehow involved; I think he was very good at acting dumb. And as the eight years progressed, whatever latent effects of 20 years of heavy drinking created caught up with him.
If he wasn’t involved, he was a moron.
If he was involved, he was a treacherous criminal.
I guess we agree, I believe he has proven he is both
Was that before or after the government argued vociferously that it would not be instructive for Sullivan to actuall read the document(s) in camera. Because they took both positions at different points in the proceeding.
After. In fact it was the sole reason they gave why he should.
So in the hearing they said no no no no, well, maybe you should see what Dick being frank looks like.
And in the most recent hearing they basically said, if you want to know what’s so special about this, we’ll have to tell you in secret.
I would like to add a Fitzgerald action I think is material to the discussion. Fitzgerald made crystal clear that he had no problem with the interview materials being released and that there were no agreements or reservations prohibiting it. He easily could have bucked up Mukasey on this, and I believe would have if he felt it warranted; he did not.
I’m going to put this into the perspective and how I believe this transpired;
etc
Bush had no interest in pardoning Libby because a pardon would have allowed Libby to speak freely, and Bush had no interest in that happening.
The same obtains for Cheney. He can put on a big show of “loyalty” to Libby by “trying” and “fighting” to get him a pardon, but he is infinitely happier with Libby silenced.
The commutation was both the least, and the most, Bush and Cheney could do because Libby had them both over a barrel. Do not forget how Mrs. Libby made quite clear that her husband was not going to see the inside of a cell, the implication being b/c he would flip on Bush and Cheney.
EW – I don’t see what the obstruction of justice would have been from Bushie granting the clemency, commutation or pardon. First, It’s a plenary power of the Presidency and, I would argue, one of the few times the President can say in full intellectual honesty the Nixon construction, i.e., that what the President does cannot be a crime. Second, to obstruct justice you have to act in such a way as to impede an ongoing investigation or proceeding – AFAIK there were no proceedings or investigations ongoing at the time of the commutation.
In reality, I think that the present “covering” for Cheney or Bush is more likely to criminalize the present coverers, since there is the misprision of felony charge (18 USC 4). But, that will never come to pass.
More likely, I think there are still some dead-enders who want to score wingnut brownie points for future use and, in the same breath, want to preserve the opacity surrounding the Presidency which Bushie and Deadeye worked so hard to build.
Alternatively, the six or ten years reference might be to cover a conspiracy to violate the IIPA, which would have ended (arguably) when Bushie left the Oval Office. I choose that moment because that was the last moment he had the power to effect the continuance of the coverup conspiracy. From there on, it was a grace of the successor administration. That, or someone knows Deadeye’s sell-by date….
Fitz’s investigation was ongoing at the time. Still technically is I think…..
Yeah, bmaz is right–FItz’s investigation was still pending, and given his history, he had every reason to expect he might be able to flip Libby while in prison. Furthermore, a number of Republicans and Democrats on HJC believed it might, in the abstract, be obstruction (of course, the Rs mostly wanted to talk about Rich, but that might reflect some of Holder’s motivations here).
So I do think DOJ may be stalling to bump this back beyond 7/2/2012. Not because Eric Holder, the guy who signed off on teh Rich pardon, is going to charge that crime. But because DFH bloggers like me will clamor for it.
So what if the investigation was still pending? That might be true but it still does not get around the fact that a pardon/commutation is a plenary Executive power exercise, specifically granted by the Constitution. I would argue – in the context of pardons/commutations only, BTW – that an exercise of the pardon power cannot, almost by definition, be obstruction of justice.
And, IIRC, we had the same discussion about the time of the commutation – discussing the possibility of Bushie throwing himself a pardon – people were hauling out the Federalist Papers wherein they made clear the only recourse to an abuse of the pardon power (to protect a Preznit’s cronies) was a political recourse, i.e., impeachment.
Remember, the obstruction statute is “corruptly influence or impede an investigation”, IIRC the verbiage correctly. But a critical aspect is that the interference has to be “corrupt”. If you’re exercising a plenary power granted by the Constitution, I argue it cannot be corrupt.
Tell me where I’m wrong, please….
It would not invalidate the pardon/commutation, but I see no reason it could not be obstruction. An otherwise lawful act can still constitute obstruction.
scribe
I’m not going to argue you on the law–you’ve got the JD, not me.
What I’m saying is there are a whole bunch of people in DC–GOP and Dem–who, like you, have JDs, and unlike you, have spent all their lives considering these issues. And they do think the question has real merit. Since Rich, DC has wanted to explore the limits of Presidential pardon power. And this is more shocking a case than Rich, by far.
But again, you’re not going to find Eric Holder’s DOJ exploring those questions, for both historical and tempermental reasons.
ISTM that when we discussed this before, there was some kind of limitation on this, because one of the more obvious uses of the pardon power would be, in fact, to obstruct justice. I think the Founding Fathers understood that. But IANAL.
Bob in HI
I think there are likely quite a few abuse of discretion and abuse of office cases that might come into play if things were to go there. Absolute discretion can still be discretion abused. It’s like the US atty firing situation, where the power in the President to fire is a power for any reason or for no reason, but not for an illegal reason.
Abuse of discretion cases are tough but they have existed for a long time and the standard is interwoven with the standard that no one is above te law. It’s why they took such a close look at the Rich pardon from Clinton and the possible buy off. Nothing came of it and the competing interests are often somewhat mismatched, but even absolute discretion (like, for example, prosecutorial discretion) can be, on the right facts, successfully challenged under abuse of discretion causes.
37 comments in and I have to go – oh well, looks like even though it will be deep epu by late tonight, it will still be worth reading later.
I am seriously beginning to worry about you. You know how Deadeye likes to do those secret little assassinations of anyone who gets in his way.
In which case the Administration and DOJ efforts would be obstructing the discovery of a new and separate perjury or false statement, no?
In their brief they try to both say that they need access to all this candid insight that they can get from Senior Admin officials, and that you can’t hold Cheney’s failure to negotiate a confidentiality agreement against them bc after all, he was “a potential subject of the investigation” who might be embarassed to be seen to be negotiating a prosecutor’s agreement.
Yeah – bc there’s nothing like the candor and inferences and insight and hunches you get from a “potential subject of the investigation”
There’s an event that is “quite possible, even likely” to occur within the next 6-10 years, purely in the natural course of things; 4-heart-attack Dick will go to his just rewards.
From memory [mine=bad], aren’t many/most of the suspected crimes that do have statutory limitations already expired? And the most serious don’t have limitations? Even the interviews are past 5 years now; things that happened during the trial, and W for the commutation, are all that’s still hanging, aren’t they?
I’m not getting why Fitz didn’t want Libby’s atty’s to have the interviews during the trial, but he has no problem with releasing them publicly now? He couldn’t have withheld them if they were exculpatory, correct?
YIKES — have I talked myself into believing that DOJ wants the interview(s) withheld because they really are still holding out a prospect of prosecuting Dick or W?!?! and releasing them now would “impair law enforcement interests” (but if Cheney croaks before they get their hands on indictable evidence, it won’t matter)?
Darth will have to be cremated and scattered, or buried in an undisclosed location, because otherwise they have to make it Teflon-coated; it’s going to be receiving lots of donations of an excretory nature.
No, you have talked yourself into understanding that Obama et. al just don’t want to release the interviews because they think it will impair their political desires. Nothing more.
Yeah if there was anything involved in the commutation or trial, it’d be still active. But like I said, I think the case would be very difficult to make, so if that’s why they don’t want this to come out, then it’s just as likely bc they don’t want me to cause them a greater headache.
That said, there are two reasons why Fitz might not prevent the interview coming out now, but didn’t at trial.
Just one example, for Fitz to get the McClellan exoneration in, he had to show that Cheney made that happen. Now, it appears that Bush was involved as well, which is interesting if you want to implicate Bush, but makes it harder to get the McClellan video in. Does that make sense? So there were inconvenient details in the Bush interview.
BUt I really do think Fitz thought he had a shot at flipping Libby–it’s what he always does (witness John Harris flipping in the Blago case, for example, an exact equivalent). But that’s not going to happen without any threat of jail time.
As bmaz pointed out in your earlier article about this matter, privileges must be specifically asserted in the form of an objection after a question is asked and before the witness answers. Failure to comply with this rule constitutes a waiver of privilege. I have no reason to believe such an objection was made. Therefore, absent an agreement reached prior to the interview setting limits on the subject matter he would be questioned about and preserving objections to answering questions protected by a specific privilege, I believe the Court will deny DOJ’s argument against disclosure based on privilege because the argument was waived by failing to object.
The only legal argument against disclosure that I can think of that might prevail for DOJ would be to claim that there is an active investigation that disclosure would compromise. Instead, DOJ claims that Cheney told the agents something “not identical” and “not at all similar” to the information in the public record. I don’t believe this argument is relevant unless Cheney’s statements that conflict with that information are important to an active investigation. While it’s possible that DOJ is really making that argument but trying to express it in an intentionally vague manner to conceal what it’s doing, I think that’s unlikely because the DOJ could have filed the document under seal. Besides, other than Holder’s to-investigate-or-not-to-investigate,-that-is-the-question mental meanderings, Obama has made it clear that he doesn’t want anything cooking on the stove.
My best guess is that DOJ is attempting to conceal something outside Fitzgerald’s authorized area of inquiry that at the very least would reasonably appear to be the basis for a false statements charge against Cheney pursuant to 18 USC 1001, and DOJ doesn’t want to explain why it has decided not to seek an indictment. I’m not sure when the statute of limitations expires, but even if it has expired the question would remain; namely, why did you let it expire without seeking a grand jury indictment?
Yeah, but the upshot of that is, as I pointed out @26 is the statute starts to run upon discovery by the government. The date the government’s own prosecutor has the incriminating evidence in his hot little hands is the date the statute commenced. Unless the government is going to step up and say they are specifically investigating certain crimes still prosecutable (not bloody likely) this is all a bunch of pungent smoke.
We agree and that’s why at the end of my post I pointed out that if the limitations period had expired DOJ still would attempt to prevent disclosure to avoid answering the inevitable embarrassing question; why did you let it expire without seeking a grand jury indictment?
Exactly. Although, in retrospect, I guess it is theoretically possible that the “new crimes” were not cognizable from the interviews alone, but only became so with trial testimony, in which case the statute would not expire until 2011. They have to step up and say they are actively pursuing something though, and that is, as I said, not bloody likely.
Heh. You could almost write a tragedy…
Hamlet has the added twist, at least in some portrayals, of creating some ambiguity about his own (i.e., Hamlet’s) sanity. I don’t think Holder’s going there… at least not yet.
Bob in HI
The decision is a no-brainer to me because it’s only a decision to investigate at this point. If I were the AG, which is impossible because I’m far too radical, I wouldn’t even consider not investigating.
On timing of assertion of privilege, they drop it in a footnote and so they must think they can’t do much with it, but they do kind of make the argument I was thinking they might on alignment and in-house issues by saying:
OTOH, since they themselves say that Cheney was a potential subject of the investigation, then I think they run into the Clinton issue – Cheney wasn’t giving his interview as VP giving background on workings of gov, etc. – he was giving his interview as a potential subject of investigation for criminal wrongdoing.
I’m going to toss out another possibility on the subject matter – if Cheney made some references to Bush in the interview, for example saying that along the lines of Bush authorizing Cheney to leak the NIE, it might be that the President authorized some of his staff to release the Plame identity – Cheney could hem and haw that, with I don’t know, but it could be that this was an authorized leak, only the President could tell you, etc. There were some reports that the Fitzgerald/Bush exchanges got a bit hot (all anonymous so who knows) and if Fitzgerald tossed out something like “Sr. officials have suggested that you might have authorized the leak of Plame’s identity …” you can see Bush getting peeved as he denied it.
Yeah, I do not think that govt to govt exception applies to this kind of situation where the one govt official is either a target of the investigation or investigative lead.
It boils down to the details of the declassification. It’s pretty clear GWB authorized the declassification of the NIE. It needed to go through a sanitizing process by agency heads first and that took time. I suspect GBW was not asked about Plame and Cheney took that on himself and only Cheney and Scooter know for sure or perhaps their recollections actually differ on whether or not Plame’s identity was a part of the authorization to declassify. There’s where the murkiness is most murky. Fitz does not speak of a cloud over the President’s office, but over the VP. I think Fitz cleared Bush but not Cheney or he would have used a different and less pointed description. Cheney may have claimed the authorization was broad enough to include Plame and it would be nearly impossible to prove otherwise. I don’t remember any agency head sanitizing that declassification of her identity, do you? Did Bush intend his authorization to include exposing Plame’s identity? I doubt it. Could Cheney tell Scooter it did? Most likely. Could Fitz prove intent on Cheney’s part to disclose without authorization? Not without a clear statement from Scooter that Cheney had not asked Bush about exposing Plame because he might have said ‘no.’
Maybe GWB didn’t pardon Libby because he didn’t like being kept in the dark and he had to take the blame for the exposure of an agent. I think he convinced Fitz that he was kept in the dark about that detail and that he felt betrayed. Didn’t he start taking back the broad authorization he had given the VP after that came out?
About the statute of limitations angle, if Cheney’s interview was May 4, 2004, even assuming crimes were discovered at that time, a five year statute would have lapsed a little over two months ago.
In relation to the interview, Wells clearly made a record of demanding any Brady material therein. Fitz turned over nothing absent the stipulation on the declassification occurring. Clearly Fitz did not consider anything else in the interview exculpatory to Libby. I would further extrapolate that he had stuff in there he considered inculpatory to Libby and/or others from his willingness to stipulate on the one area to keep from having to disclose the remainder.
Thanks bmaz–can you say more on that? So if Cheney said, hypothetically that he could have declassified Plame but did not, then that would apply? Or that they were having the fight with CIA going back to June?
Why didn’t Libby use Cheney’s testimony to impeach Libby’s testimony?
This passage still bugs me. What “law enforcement interests” are they referring to?
It leaves the impression that the DOJ is still contemplating further prosecutions (for example, Libby finally turns and implicates Cheney).
I realize that the DOJ attempts to make the case wrt an “unwillingness to cooperate in future investigations”, but that doesn’t seem to sync up with both “law enforcement interests” and “now”.
They are NOT contemplating further prosecutions; they are determined to keep from even having to discuss the issue, that is all.
We agree. I see it further as the DOJ attempting to use Exemption 7(A) and its shelter for pursuit of a specific “reasonably anticipated law enforcement proceeding” and adding to it a very non-specific future potential “we might someday prosecute somebody about something”.
In essence, turning Exemption 7(A) on its head, inside out, and upside down.
And even for someone who’s NAL like me, this doesn’t come close to passing the “fool a 4 year old” test. I’ve got to believe that Judge Sullivan won’t see it any differently.
That’s because their argument makes no sense.
Suppose that Cheney said “I ran it past Bush, and he approved”. And suppose that Bush said, “Cheney ran it past me, and I approved” (not that they agreed on the referent of the word “it”)…. Next, suppose that 43 did indeed worry about the views of 41–i.e. of “history”, and made sure to claim that Cheney alone knew of the details…
But none of this matters. What matters is the outing of Plame. If I were a CIA officer, I would never, never forget that one, terrifying deed. Have the Wilson’s addressed this point?
Perhaps during his second term, 43 was more willing to listen to 41 than he was during his first term.
Perhaps after inauguration to his second term, 43 said to 41, “Well, Dad, heh heh, I got a second term and you didn’t!” Whereupon Daddy said, “Well, you let Dick run the shop during your first term. When are you going to start being President?”
Or did a succession of visits from Bush 41 consigliori Jim Baker finally start to have an effect?
Bob in HI
IIRC, Bush43 dislikes Baker, and intensely resented that Iraq Study Group report with its recommendations. He was downright pissy when that came out.
However, it’s possible that Condi got through his filters a bit and that Bob Gates did, as well.
Or maybe the pressure of the Plame investigation jolted him out of his ignorance just enough to be more aware that he needed people keeping him safe; after the March 2004 showdown with Comey, the soured relations with Ashcroft, and in May 2005 more about ‘torture’ being run by OVP out of DoD started leaking, plus he lost the ‘let’s privatize Social Security’ battle, which had to be humiliating.
43 may dislike the omnipresence of Baker bailing him out, but Baker was also the guy who could, within limits, discuss the case with his partner, Bill Jeffress, who turned out to be Libby’s best lawyer in any case.
Oh, wow.
Okay, that loop now closes with a ’snap-lock’.
I’d not made that linkage.
Thx.
(Wow, what a post…)
For me, the whole affair has always come down to one, very simple deed, the outing of Valerie Plame. Now that we know her name, her face, her family, and much of her life, I for one have trouble recalling the key fact: she was an agent, perhaps an important one, and in any case a securely anonymous one, working for the CIA. Of all the bureaucrats in Washington, such a person is the most vulnerable to every sort of disaster, such as getting assassinated, or having one’s contacts and associates assassinated, or, at the very least, losing a career and taking some other folks along on the way down. That’s the sort of thing that could happen to a President or a General or a Secretary of State, except that an agent has none of the protection that comes with prominence, such as world-wide fame and a whole army of bodyguards.
I really believe that the outing of an agent–or more precisely, of an agent on the job and not retired–is the very worst thing that any bureaucrat can do to another, short of shooting them outright.
Meaning what? Meaning that this is done, if ever done, only with the most considered and careful decision-making all around (as if, for example, there were reasons to suppose that Valerie Plame were a double-agent).
But Cheney doesn’t know about these things–about the hazards run by junior people, about the value of their slowly and painstakingly acquired expertise, their risky network-building, and all the other things at stake here.
So he outs an agent for what–out of spite because some folks in the press were on to his stupid little games? Yes, he did it for that reason. And so the greater bureaucracy, with real challenges to face, brought the thing forward and got the courts involved.
So here’s the final point: which of these two men is the more callous and mindless about the stakes involved? Cheney or Mr. 43? I don’t know the answer, but I sure as hell favor 43. And if there’s one thing he dreads in life, it’s what will come out if he’s proven to be the guy who outed Plame. Finally it will implicate 41 himself, through guilt by association, with trashing a valued person in the Agency he values most.
Let’s not forget that Valerie Plame’s job along with her fellow CIA covert agents working for a CIA front company collecting intelligence on nuclear weapons proliferation, particularly Iran. When she was outed, so were all the other agents effectively eliminating an important, if not the only source of intelligence on whether Iran was trying to build a nuclear weapon.
Do y’all suppose it’s a coincidence that happened since we know they were reporting that Iran was not attempting to build a bomb. Rather inconvenient news for the War Party. Outing Plame and her cohorts at Brewster Jennings actually served a far more important neocon objective than getting back at Joe Wilson because it allowed Doug Feith’s OSP to control the message with trumped up intelligence.
No doubt of it, not, at least, to my own (under-informed) way of thinking. Libby, of course, is a first-generation, true-believing neo-con who studied with Leo Strauss, unless I’m mistaken. And, of course, he was Marc Rich’s lawyer, and Marc Rich is one of the neo-cons most generous, and well-heeled, patrons.
But serving neo-con policy doesn’t meet anyone’s standard for outing agents–least of all the neo-cons, who have so much to lose if the game gets played that way– and Libby surely must have known this. But Cheney? But Bush? They were only too happy to trash any agent connected in any way to someone who dared to show what liars they were. And, bullies that they are, who had bullied the bureaucracies with great success, they certainly never thought that anyone would fight back.
Surely Joe Wilson would have known about the standards for outing agents, but not about Cheney’s and Bush’s, willingness to trash those standards. It may have caught him by surprise.
Indubitably. And isn’t that food for thought?
Bravo, sir or madam. It took me years to figure this point out.
And things like these items on EW’s Ghorbanifar Timeline simply make it difficult to not suppose that something quite like your scenario is the most simple, straightforward explanation for events that we’ve seen unfold:
March 13, 2003: Rosen discloses information on policy document to “senior fellow” at DC think tank (Ledeen?) [Rosen was an AIPAC lobbyist indicted for passing classified info to and from US, via Larry Franklin who worked for Feith at DoD-OSP]
March 17, 2003: Franklin faxes Rosen contents of appendix from internal policy document
March 18, 2003: Rosen leaks details of policy document to WaPo’s Michael Dobbs, saying “I’m not supposed to know this”
April 2003: Iran proposes re-establishing relations; US rejects proposal because Iranian government “on the verge of collapse”
May 3, 2003: US and Iran in negotiations in Geneva
May 7, 2003: Rhode apparently stages “find” of anti-Israel materials in Iraq (and uranium document) with Ahmed Chalabi; Judy Miller reports it [Chalabi viewed as unreliable source by CIA]
Late May, 2003: Ledeen sends new letter outlining Ghorbanifar plan to Feith, including promise of finding “Iraqi weapons of mass destruction that had been moved to Iran” [creating targets, anyone…?]
May 21, 2003: US cancels Geneva meeting with Iran, accusing Iran of harboring Al Qaeda leaders
May 25, 2003: Report (quoting Rummy elsewhere) that US considering using MEK to launch attack on Iran
————–
Oh, and FWIW, Joe Wilson was Bush41’s top person in Baghdad during Gulf War I.
What does that tell anyone about Cheney, or the neocon’s level of contempt for any US federal government employee — for their expertise, for years required to develop knowledge and contacts and a network….
Libby, Cheney, Bush, and everyone else probably figured that given the seriousness of the sh*t they were pulling, they had to lie about it. Looks like someone, somewhere got confused and off message.
I agree that there was more to the outing of Plame that just getting back or attempting to discredit Joe Wilson. It was a two-for-one shot.
The leak was the heart of Fitz’s investigation, yet he got sand kicked in his face by Libby so that he could not get to where he needed to go…i.e. get the evidence to prove all the elements of intentional leaking. Cheney’s interview was somehow more factual or to the point of the leak and whether or not it was intentional on the part of the leakers. If Cheney gave instructions to leak BEFORE he insta-declassified, that would be something different that instructing after he claims to have gotten authorization to declassify.
I felt I misunderstood the case all along until I watched Victoria Toesing testify as to her part in the writing of the IIPA which was to protect people/government employees who revealed the identity of an agent unintentionally. Her job was defending the leakers, and not so much protecting the leakee. That shifts the focus considerably. It also is where it is easy to throw sand in the eyes of an investigator trying to put together all the elements of a violation of this particular statute. Has anyone ever been convicted under the IIPA? What is the statute of limitations on it? Is there something in the frankness of the interview that would point to intent that had to be confirmed by Libby.
I tend to think GWB was not in on the details. Perhaps more frankness there with Cheney taking it on himself after getting authorization generally. It may have come down to a timeline question with the insta-declassifying being retroactive once Cheney or someone realized that IIPA might come into play.
I thing GWB only made one major decision on his on and that was to show them all including the GOoPers who was boss: Harriet for SCOTUS
Here’s why, despite bobs’s cautionary words (which do need to be part of a very complex equation), I suspect that Bush43 was in on it, and it’s largely ‘gut’.
Here’s a guy (well, he + Cheney) who was quite satisifed to gain control of political, judicial, military, economic ‘assets’ based on ONE vote in SCOTUS. No true political animal with a view to trying to actually accomplishing long-term objectives would have settled for that, b/c in a democracy you have to think in terms of years to make meaningful change. (See also: Dean, Howard, but I digress…)
Based on what was basically a power-grab, Bush and Cheney took office and promptly proceeded to start bellowing about their ‘mandate’ in an effort to legitimate their claims and intimidate their opponents. And for several years, partly b/c of 9-11, they did a heckuva job: Abramoff was raising money, Tom Delay ‘the Hammer’ was bullying Congress, Frist was running the Senate in a way that would perhaps please Voldemort, and Cheney promptly created that snake pit under Rumsfeld’s aegis at DoD, while also doing the Secret Energy thing — and remember, Plame’s cover involved energy (and Iran) — and also having cronies run Dept of Interior, GSA (whoever ran government contracts), on and on and on… and the corrupt GOP House Armed Services Committee was busy doing God only knows what. Meanwhile, Exec email was being deleted, and someone in NSC (Hadley) was approving private meetings in Rome between so-called Iranian defectors and DoD OSP officers. And I’m not even sure who was getting anthrax throughout this period, but “Angler” reports Chalabi boasting that he had contacts with access to anthrax while he was sitting in luxury in Bagdad waiting for Bush-Cheney to install his ass as the head of a new ‘democratic’ government in Iraq.
The Bush-Cheney modus operandi **assumed** that the press would never, ever reveal the sources, and they leaked with deliberate impunity and almost surely thought they were invulnerable. They played that to get in office, and to achieve their political objectives.
The years of expertise that someone in a division of Agriculture, or Army Corps, or any other part of the bureaucracy appears to have been completely below their radar — their actions suggest people who hold government beneath their contempt, but are primarily interested in using the regulatory and legal mechanisms in order to extricate (i.e., ‘privatize’) wealth. I have yet to see any symptom that they held the skills of bureaucracy — the accumulation of expertise — of much value. UNLESS it related to their geopolitical objectives, in which case they acted like pimps. Get what they needed and then toss the bureaucratic expertise to the winds.
Then along came Fitz, and the good judge Walker, and suddenly aspens were ‘turning at the roots’ Out West. They managed to stall it for years.
FWIW, someday, it would be nice to know at what point John Ashcroft woke up; did Comey’s providing him with some information that Scooter Libby had lied to the FBI about what Tim Russert knew help the light bulb click off in Ashcroft’s mind? That would have been in Dec 2003, which was two years after Ashcroft had a shouting match with Cheney, and then gave up trying to win that bureaucratic knife-fight over military commissions.
This thing has deliberate, premeditated, ruthlessness written on almost detail. For as ‘incompetent’ as this crowd was, there’s a ruthless, heartless pattern to it, domestically and internationally.
A superb post, dear readerOfTeaLeaves. It crystallizes ALL of my thoughts for the past eight years (ever since Sharon took his evil victory tour in the spring of 2001).
People woke up, to begin with, as soon as they realized that Plame was outed. Putting together the forces to fight back must have lasted through October of 2003. I truly believe that Mueller (and probably Tenet, and certainly Powell) were on board from the start. Ashcroft might have signed up as early as November (these things move fast–not that December isn’t pretty fast to begin with!).
Sorry about the mix-up in my previous comment. Here’s my question: why didn’t Fitzgerald use Cheney’s testimony to impeach Libby?
I don’t believe Libby testified at trial, so Fitzgerald couldn’t cross-examine him.
We don’t know what Fitzgerald presented at the grand jury regarding Cheney because he didn’t call Cheney as a witness, or Bush, and he had no obligation to disclose what, if anything, was presented to the grand jury about what they said since he didn’t call them as witnesses at trial and their statements were not exculpatory as to Libby.
But following on from “not exculpatory as to Libby”, I think the interview(s) also couldn’t have been INculpatory of Libby, as bmaz suggested @26:
or Fitz would have used them at trial, yes? (but I agree with bmaz about the “inculpatory to others”, because of that stipulation)
But why has Fitz been at the very least indifferent to — if not exactly actively supporting — public release of the interview(s) since the trial?
@31, seems like MadDog is hanging up on the same language that’s scrambling my brain?
Assuming Cheney’s statements were inculpatory as to Libby, Fitzgerald may have decided not to call Cheney to testify against Libby for a variety of possible reasons such as (a) he didn’t need Cheney’s testimony to convict Libby, (b) because the jury would hate him canceling out any theoretical benefit, if not damaging the government’s case by associating Cheney with Fitzgerald, (c) he may have decided not to call Cheney as a witness during his case in chief so that he wouldn’t have to provide Libby with a copy of Cheney’s statement, but he might have called him as a rebuttal witness, if Libby had testified and Cheney would have contradicted him, (d) he may have hoped to lure the defense into calling Cheney as a witness, which is what Libby’s lawyer said he would do, and then rip Cheney a new you-know-what on cross establishing some color and detail to that cloud hanging over the OVP (I think this was his real objective), or (e) he didn’t want Cheney anywhere near the courtroom.
After the case was over, unlike Obama’s present attitude, I believe Fitzgerald had no reason or desire to protect Cheney, so he had no problem with releasing his statements.
Agree with you completely here:
Right, but Libby did speak to the FBI and Grand Jury, which is why he was accused of perjury. If Cheney’s interview actually contradicted Libby, it doesn’t make sense to me that Fitzgerald didn’t use him as a witness. Unless Fitzgerald knew Cheney was lying, which makes these recent claims that Cheney was being frank even sillier. If, on the other hand, Cheney was being frank and telling the truth and contradicted Libby, he would have been the perfect perjury witness.
Good question.
First, bc actually calling Cheney puts someone on the stand who’s not afraid to be an asshole even if (especially if) it disrupts a trial. Addington sung like a baby on the stand, but Cheney would never have done that.
Second, it likely introduces elements into the equation that would distract from the core issue of Libby’s narrow lies as charged, and onto larger issues.
ew, if I’m understanding this right, Fitz kept the interviews tight right up until the commutation in the hope he could still use them to get Dick through Irving; but after the commutation he lost his leverage, so the interviews ceased to be valuable to him? And, since prosecution seems ever more unlikely, maybe he figures just getting the interview information out there is better than nothing?
It was Fitz’s apparently inconsistent behavior about the interviews that puzzled me, and made me think I was reading the DOJ wrong. But if this explains what Fitz did then and now, then we’re just back to the default DOJ position of CYA, their own and/or Dick’s.
Bingo.
General rule for trial lawyers: never introduce rogue
elephantselements into the trial which can be turned to the advantage of the opposing side.Same rule applies to rogue elephants, I dare say.
I agree with Scribe. The President can commute a sentence or pardon someone for any reason or no reason. He doesn’t have to provide an explanation and he can’t be charged with a crime.
Bmaz pointed out that an obstruction charge may be possible, depending on the President’s intent. I doubt it, but I don’t know if that issue has been resolved by the Supreme Court.
A little history
Clearly the founders held no water for the President pardoning for an improper or ultra vires purpose. The remedy was deemed to be impeachment upon the crime at issue, which in this case would have been obstruction. The only reason it was impeachment is because you cannot charge a sitting President. Once the President is out of office you can charge the crime and/or impeach.
I see nothing in the history or law that says it could not, and should not, be obstruction for a President to intentionally hide criminal conduct involving himself or his direct administration, by pardoning an individual. It may not invalidate the pardon because, as Scribe says, that power is plenary; that is separate from from what the President is doing with that legal power.
My sentiments certainly favor prosecution for obstruction, if the President intended to obstruct justice by granting the pardon. Proving such specific intent beyond a reasonable doubt might be problematic without a confession and not worth attempting unless a conviction is virtually certain.
I am not saying you could convict him of the crime; just that there arguably is a crime and he theoretically could be charged with it. But I find it impossible to say there is no chance of conviction when we have no idea what evidence a full investigation would yield. As to the point of this post though, release of the interview documents, and that is currently the real issue, I argue that the public has a right to know what occurred in its name and the DOJ’s arguments to the contrary are ludicrous.
I agree 100% that DOJ’s arguments are ludicrous, if not Yooish, and We the People have a right to see those documents.
I think we need a better adjective to mock this kind of argument.
“Yoo” lends itself to mockery–it sounds like a Dr. Seuss term. BUt we need one that fully describes how corrupt this kind of argument is.
Scurrilous is the traditional term I use in legal pleadings where I cannot say “fucking asinine”.
Egregious works pretty well, too, along with abominable, atrocious, awful, deplorable, execrable, heinous, monstrous, outrageous, preposterous, and shameful. Or what the heck, string them all together in the same sentence.
Bob in HI
‘Spurious’ is always good, too.
Let’s have a contest. *g*
“Yoo aren’t gonna believe this.”
“Yoo could’ve fooled me.”
Yoophemism and it’s adjective Yoophemistic.
Alternate Yooniverse.
And a favorite of mine: Yabba Dabba Yoo.
HEY, yoo too!!
There’s also Yoo Hoo, Loo Hoo!
Kind of has a cool sound.
I see the political calculus permutations as follows:
Obama Administration desires:
1. Wants Cheney interview released; release w/o fight; pay high political price with conservatives and Villagers;
2. Want Cheney interview released; fight but lose; pay NO political price with conservatives and the Villagers but small price with liberals / progressives (loss of faith in their intentions);
3. Don’t want Cheney interview out; Fight but lose; pay NO political price with conservatives and the Villagers but small price with liberals / progressives (loss of faith in their intentions);
4. Don’t want Cheney interview out; Fight and win; pay higher political price with liberals / progressives than 2 or 3 but still smaller than perceived cost with Conservatives / Villagers
Note that 2 and 3 have the exact same cost.
The likelihood of the above options?
The DOJ presents:
A. Valid and winnable legal arguments – argued competently
B. Valid and winnable legal arguments – argued incompetently
C. Weak and likely losing legal arguments – argued competently
D. Weak and likely losing legal arguments – argued incompetently
A=4
B=3
C=3
D=2
While it appears you have a 50:50 split between whether the desire is to have the interview released or no, the key here is whether Option B relates to outcome 3 as I’ve shown, or is it really Outcome 2? Since the consensus here is that DOJ’s argumentation is “yooish”, I think it safe to say that any legal argument, either weak or strong, argued incompetently suggest that DOJ is throwing the game, taking a dive – pick your metaphor. If you assume that DOJ cannot by intent argue incompetently (assuming the dead enders are not controlling the process) the likelihood is better than 75% they want/ expect the interview to get out and the tactics employed result in the smallest political cost.
I’m not one to forgive the Obama Administration for its seeming embrace of some of the Bush theories on Executive power, but this one to me seems more likely to be political calculation, or 3 dimensional chess if you prefer.
OK, you answered my foggy memory @ 63, and I defer.
Thanks,
Bob in HI
My point exactly, though I would limit the presidential immmunity to criminal charge pretty much to this context, i.e., can’t be charged with obstruction for using the pardon power.
Beyond that, I haven’t given it much thought.
BTW, DOJ’s legal argument appears to be a rather yoo-ish effort by DOJ consistent with Obama’s intent to once again protect Cheney’s ass and I am so deeply offended by his decision that I don’t believe there is anything Obama could do to regain my respect unless he changes his mind and green lights DOJ.
Just as a matter of form, how can a responsible and well informed decision about prosecuting Cheney be made without conducting an investigation to determine what he did and, if he violated a law or laws, whether it can be proven by competent admissible evidence beyond a reasonable doubt?
I am thoroughly disgusted with Obama.
Ah yes, the heady of days of the Scooter Libby trial, where we had the story of a brilliant Prosecutor told to us by a brilliant Blogger/Commenter with the quickest fingers this side of Goldman Sachs !
I will always remember the great closing arguments by Fitz and the ridiculous Ted Wells channeling The King, Elvis Presley – Bring My
LibbyBaby Back Home To Me …perris @ 9 and ROTL @ 15 (reply functions inhibited by hangup in ”Transferring data from ec. atdmt.com…”):
Very little of our conversations about these matters seem to allow for the possibility that Bush43 evolved in his thinking over the 8 years of his presidency. We need to give greater consideration to that possibility.
For example, I think he pretty much gave Cheney carte blanche during his first term, but during his second term, if not late in the first, gradually became disenchanted with Cheney and increasingly fenced him off. This may be due in part to the advice he was getting from Hadley and/or Secretary of State Condeleeza Rice and/or others. I mean, even given a man of GWB’s caliber, it would really be pretty hard to spend 4 years as President and NOT learn anything.
I think one could round up quite a few signs during the second Bush term that Cheney was being hemmed in and limited. For example, he never did get the war with Iran that he wanted so badly.
Bob in HI
I think you’ve left some pearls of wisdom on this thread, and you make a very good point.
But did do his Commander Guy yapping about ‘firing leakers’ and then not fire them?
And why did he tell Scott McClellan in an offhand matter that he’d pixie-dust declassified Plame’s name? Because that sure as hell sounded like an admission of guilt — and offhand, at that, about a person charged with overseeing nukes and Iran.
But your point is a good one.
Weird as it may seem, I wonder if someone went rogue under GWBush at some point and scared the living sh*t out of him. I recall bmaz agreeing with me that GWBush looked like hell sometime in late autumn 2007, around the time that the intel spooks in DC slam-dunked the Bushies with that Iran NIE that lowered the threat risk. (And I primarily recall that b/c bmaz and I didn’t frequently agree about things 8-0
Agree that there were definitely signs that Bush43 was allowing some of the Bush41 hands (Gates, primarily) to come in and clean up. Certainly it appears from reading news headlines that Gates cleaned up that rat’s nest of OSP, and that Cheney was somehow constrained the last four years.
Hadley seems like a snake, but Rice seems to have at least tried to finally push back at Cheney. I had assumed (from something that I read) that Hadley was going behind Condi’s back to communicate with (the genuinely obnoxious) Bolton, so assumed that Hadley was/is a Team Neocon founder.
But your cautionary observation is helpful.
Will ponder….
Nukes over America???
Maybe what I’m trying to say is that whatever was in the interviews that was damaging to Irving didn’t add enough legal oomph to Fitz’s case to outweigh the value of holding on to whatever OTHER damaging stuff about OTHER people was in there?
(I feel like the kindergartner trying to keep up with the big kids here)
Well, I’m a preschooler, but I tend to suspect as you do that Fitz didn’t reveal info b/c he’s still ferreting out something and/or else whatever he’s looking for has not yet had time to reach fruition so he can pounce on it.
(I may be completely offbase here; it’s entirely possible that my emotions are driving my analysis. However, there seem to be too many dangling ends and unfinished items.
Unless, as LabDancer points out, I’m entirely misreading the signals b/c I don’t have a law degree nor the legal expertise to figure it out.
DOJ is willing to see this released in several years, but not now. I’m wondering if that has as much to do with a 5 year statute of limitations as it has to do with anything else? Perhaps there’s enough evidence of Bush’s involvement in the leak that they want to avoid any questions of whether Bush obstructed justice when he commuted Libby’s sentence?
BINGO!
Fitz obviously knows what’s in his own interviews. Whatever DoJ is hiding would not appear to be something which would be worth prosecuting, or presumably Fitz would have filed charges. Right?
The degree of stupid behind the DoJ’s arguments appear to coincide with the level of idiocy attending CIA’s refusal to allow Ms Plame to publish her book, because she would be revealing herself.
It’s possible the thing being hidden by DoJ is perhaps just forthright admission to the truth of everything already known.
Institutional cognitive dissonance.
It’s a theory, anyway.
OT sorry but I need an interpreter. I don’t read lawyerese that well – it’s Greek to me;-) and there’s nothing written of it online recently
Moss v. US Secret Serv., No. 07-36018
From findlaw
Then there’s the conclusion from the decision [pdf]
They’re saying the plaintiffs didn’t prove the case? But they can amend their complaint on appeal?
I’m just giving you a quick summary type answer without doing any research, so don’t assume I’m giving you legal advice because I haven’t read the case and I’n not familiar with the facts.
Bivens is the case that basically recognized a cause of action against federal officials for violating civil rights. When Bivens was decided, people could sue state officials who violated their civil rights while acting under color of state law (which basically means while doing their job) pursuant to 42 USC 1983. Bivens made the same remedy available to people whose civil rights were viuolated by the feds.
Federal and state law enforcement officials have qualified immunity from suit under Bivens and the statute, if they are acting reasonably and in good faith on the basis of the information available to them at the time of the alleged violation. In other words, even if it turns out that they were acting on the basis of false or mistaken information and harmed someone while carrying out their duty in good faith, they are not liable.
Looks like in the case you mentioned the Secret Service agents asked the court to dismiss the complaint against them before trial because it alleged that they acted with an impermissible motive without alleging what the motive was and why it was impermissible.
In the end, the plaintiffs were given an opportunity to amend the Complaint in the interests of justice by adding facts that state a plausible claim under Bivens.
All of this happened before trial.
Thanks
Wasn’t asking for legal advice just clarification *g*
And if you want to read the decision, I gave a link (which sometimes aren’t very visible). Click where it says “[pdf]” on my post
By the way, the plaintiff will have the ability to amend the complaint, but not as part of the appeal but upon remand (the sending of the case back) to the trial court. This will allow for two avenues toward keeping the action alive; first, the plaintiffs can beef up their complaint as to the bad faith motivations and deviation from policy by the SS and, secondly, the court can rephrase its opinion allowing the matter to proceed better in terms of Iqbal so that, hopefully, the appeals court does not disturb it the next time. That is a bad appeals court though….
Perris is closer than anyone else (in my own opinion naturally).
Now why not just show Cheney’s hand to the world?
Well Obama and his DOJ do have some worries with that.
1. It would show what the all powerful presidency and Vice-P also can do, and perhaps bring about a pointed congressional effort to make a new burdensome law or at least to have some kind of of inquiry forum.
2. It is also quite true that no matter what Marcy says about White House members having being interrogated in the past that if the WH desires it can really shut down the truth in the case where information is being sought by the DOJ or others. I don’t mean necessarily lying including lying by omission, I mean by throwing confusion and doubt into the train and texture of the conversation. By infusing and lacing any discussion with top secrets and then referring vaguely to the difficulty of discussing these things and to the difficulty of using these things in a court case. By interminable delays as things sort through the courts, congress, and the Admin, adn this back around, over and over. We did see a little bit of that and it still continues.
As for Bush’s own actions regarding Libby’s sentence despite Cheney’s desires, I think that mostly reflects Bush’s own sense of what a President is and does. His own particular sense of honor and rigor. (Some will laugh here but he does have his own brand of that.) That meant that as Governor he was a death penalty advocate and commuted few sentences and this behavior was replicated in the WH.
He was really stretching to commute Libby’s jail sentence.
Congratulations Perris.
What about the possibility that something[s] said by Cheney in Fitz’ interview of him arguably effecting revival of the Wilsons’ lawsuit, or providing the Wilsons’ with newly discovered grounds to appreciate a tort committed against them that was not actually known to them previously and could not reasonably have been realized or surmised by them absent the public release of the content of the interview? For example, a conspiracy to defame or injure one or the other or both Wilsons in some particular way? One would think the DoJ under any AG would be anxious not to encourage the filing of potentially successful civil actions for which the federal government might well end up being on the hook monetarily.
Would that purpose not be violative to the special ethical duties of governmental lawyers, especially prosecutors?
Oh right: DOJ lawyers would never, for example, countenance recommending the administration invoke state secrets to avoid financial and other embarrassment. So I’m completely and utterly off the reservation with the merest suggestion that any such motivation would exist let alone hold any sway.
Oh no, you are not missing anything, the scummy suckbuckets would do that in a heartbeat. Just pointing out they shouldn’t be doing such things….
This is one of the reasons why the politicization of DOJ was so destructive.
I agree. Indeed it would.
Oh, do say more. That would go along nicely with DOJ’s sniffing at Congress’ “partisan” inquiry into whether it’s okay to instadeclassify things like NIE and CIA operatives’ identities.
glad to hear that you are going to interview Mark Klein.
he’s one of the dozen or so courageous people out there trying to get the information to us about how the government has become essentially a gangster organization.
the critical thing about the Klein story, other than the factual documentation and physical evidence to show the illegal activities of the federal government, there’s the integrating nature of his story:
1) the back-stabbing media and their blatant complicity with the Bush administration,
2) the terroristic threats of job loss,
3) the possible disappearing of Americans, including possible assassinations,
4) the suppression of evidence by Congress and the media,
5) the irresponsibility of Congress as overseer of illegal activities of the federal government,
6) the complicit nature of Congress in aiding and abetting the crimes of the administration
as they continue to do to this day
From Waas in 2007:
.
Not sure if that sheds any light or just makes things curiouser and curiouser.
Thanks for that. I know that bit is based on Murray’s excellent sources. But I always worry about what they werent’ telling him…
This post is buzzing in my brain like a gnat today. So I came back and reread it. FWIW, I read this:
. Reading the EW Timelines, there’s overlap among individuals who mention anthrax, end up with missing emails, show up in the Ghorbanifar sequence (i.e., OSP- related possible espionage that appears to obsess on Iran), surveillance both foreign and domestic.
There are a lot of players.
The buzzing in my brain is kind of amorphous, but leads me to wonder whether this is even about Cheney, specifically. Nor about Bush, specifically. The ‘cloud’ over OVP surely included OSP, the NSC, the Bolten office in Dept of State.
Cheney and Libby clearly coordinated their stories. But how well did they coordinate with Hannah? With Wurmser? With Cambone?
Here’s hoping some shoes fall from the sky.
Just knowing there’s a guy on the planet with Joe Wilson’s guts is heartening. What Joe Wilson did took guts; what a shame and a travesty that Joe Wilson (and his instantly-famous spouse) had to take on this level of venalty on their own. Incredible.
To continue with your excellent point, I wonder why V & Co. haven’t been able to exact their pound of Flesh as yet … a public shaming would be most fitting punishment for this band of traitors.
To say the least, a whole lot of good-willed and valuable government servants have been horribly destabilized by this bad gang of pretentious princelings. The strong ones will recover, they are in the process of recovering their stability, but it makes for a murky story. And Obama knows very well that he has only four-to-eight years to undo the damage to the government’s infrastructure. Unlike most of the posters here, I cut him some slack on this, because I don’t know the political costs and benefits of any given decision–such as the releasing of documents that so obviously belong in the public domain.
Yes, we can read it as Obama trying to accumulate power wrongfully, but I prefer to read it as Obama trying to undo some deep and complicated damage. Of course I’m not a lawyer, so I can’t feel the outrage or one or another act on the part of the administration. And so, Machiavelli so wisely said, Si guarda al fine–you must await the outcome.
Bush’s key men face grilling on torture and death squads
Former vice-president Dick Cheney could be forced to testify to Congress over allegations that a secret hit squad was set up on his orders, as Democrats press for inquiries into the conduct of the ‘war on terror’. Paul Harris reports from New York
“America is bracing itself for a series of investigations that could see
top officials from the administration of President George W Bush
hauled in front of Congress, grilled by a special prosecutor and
possibly facing criminal charges.
“Several investigations will now cast a spotlight on Bush-era torture policy and a secret CIA assassination programme, examining the role played by big names such as the former vice-president Dick Cheney and the former defence secretary Donald Rumsfeld.”
Link.
Yup, and I wonder whether they already have more and bigger stuff on Deadeye, which would make releasing any more info about Plame work against their objectives.
Remember that Cheney had Secret Service protection extended by Obama, exceptional for a VP; apparently there are a lot of “threats” against Cheney the likes of which previous VPs have not had to contend.
Why?
Who or what is threatening Cheney, a guy whose health history alone likely portends no more than another 10 years? (the guy has been extremely fortunate to be on gov’t health care, having had four heart attacks by 2000; nearly any other cardiac patient with that kind of history would be spoken of in the past tense by now.)
Cheney’s the aspen, the single thread which unites the scandals we’ve been following; Bush appears as a distant figure in most of them, with Bush’s role focusing on domestic policy apart from energy, and getting reelected in 2004. Anything to do with defense, foreign policy, national security, energy had Deadeye’s suffocating grip upon it, squeezing out Bush in a manner similar to Deadeye’s squeeze play on the vice presidency before Bush/Cheney 2000 came to be. The Angler angled himself into the most important and sensitive portions of the executive office.
Seems like there’s enough reason for DOJ and the White House to try to buy time. It’d be very tempting to me if I were USAG — especially with baggage like Holder’s — to wait for the very ugly stuff to emerge, including whatever may be spawning threats, and let the momentum of public opinion (including the wrath of DFHs) to help move this to a better disposition.
The Saturday Night Massacre was good, but it set a bad precedent. Now, it seems, anything less than a public outcry on the level of the SNM is simply to be discounted. Just as there is disaster fatigue, whereby a succession of public disasters engenders diminishing responses, so there is outrage fatigue. The past 8 years in general, and the last 4 in particular, have seen so many outrages that the public has grown weary in protesting– which is exactly what the Republicans are counting on. Perhaps it is another one of Cheney’s design features.
It is a mark of bad governance to demand public outcry in order to enforce the law. The law should be enforced impartially, without regard to rank, station or class. It should be enough that the law is broken. No other hurdle should be required for the guilty to be prosecuted.
What we’re seeing is as bad as if the County Sheriff decided not to investigate murders of Blacks if it looks like they were murdered by other Blacks: Not enough public interest. But if a White person is killed by a Black person, then Holy Hannah, no expense must be spared. Especially if the White person is a Blond teenage girl.
Have we become like Roman circuses, where the fate of the gladiators depended on whether or not the audience cared sufficiently about one or the other? Is the FBI going to allocate resources to investigate crimes on the basis of opinion polls?
What kind of nation are we becoming?
Bob in HI
Maybe I’m just a tinfoil wearing freak — and I do embrace my tinfoil — but I believe there are reasons why it’s absolutely necessary for us to try to generate pressure through public outcry and DFH investigative rantings.
Ponder these things:
– if you were the first person of color in the White House, the target of who knows how many race-based threats at a time when the economy is depression, how would you handle going after the previous occupants (who just happen to be white) without inciting even more rabid behavior among racists?
– if you needed to go after people with assassins at their beck-and-call, how would you do it while avoiding getting whacked?
– if you needed to go after the white-assassin-packing crew before you but were equipped with left-behinds and dead-enders as yet unrevealed in your ranks, how would you do it? **
Cap it off with being a moderate politician, too, charged with a long slate of progressive objectives which require substantial horse trading.
Given these potential liabilities, I don’t think we can expect what appears to be obvious or a slam-dunk. I think we have to make it impossible for the administration not to investigate formally and publish and prosecute its findings. We have to provide the kind of political cover appropriate to this very different and rather historic situation. (Just think about it: a black American president chasing a previous administration guilty of torture and assasinations. It’s f*cking breathtaking, the stuff of fiction.)
We would have had a mess on our hands had any other Dem candidate been elected; it’s just more complicated by the race factor.
Remember some of the scuttlebutt about the assassination squads — they were trying to recruit, train and deploy gangs, organized crime, to do the dirty work. Would that, could that include deeply racist elements in this country?
Ugh. I dislike imagining this stuff, but so far we haven’t gone wrong about the depth of criminality of the previous administration. I can’t rule these risks out; merely means we as bloggers and readers must continue to keep the heat turned up.
[** edit: forgot to add that you’re not only blessed with embedded left-behinds, but your USAG carries a lot of baggage, too…]
While agree with all the problems you note, and the US is far from perfect, I also recall that at least the group I spent Election Night of Nov 2008 with… well, there wasn’t a dry eye in the place and the champagne was flowing and we toasted the teevees set up (one for CNN, one for MSNBC, plus a couple computers…).
That night it felt like the earth’s axis shifted, just a sense of relief that so many millions of people could — in a determined, gutsy, methodical, unflinching, slogging fashion — register voters, teach people about issues, keep making phone calls, watch polls, drive voters… it was miraculous.
And I can definitely say that it was amazing to watch some of the 20-somethings get involved.
We’re way ahead of where we were even 12 months ago.
Now, to keep at it…
I see the same dynamic, though there’s the question of statute of limitations which cuts in the opposite direction. That makes me wonder what possible crime(s) Fitz may have caught wind of in Cheney’s interview, for which the statute has not yet tolled. In other words, what possible crime(s) might still remain chargeable? I don’t know whether any of the other agents under the Brewser cover were killed after VPW’s cover was ripped untimely, but if so, (a) would that event trigger any other (non-IIPA) crimes that could be chargeable as to Dick, and (b) would the statute have run yet?
To pose the same question from a slightly different angle: Is there any crime other than murder with no statute of limitations?
Treason comes to mind. What exactly are “high crimes”, cannot recall? are they without statue of limitations?
whitewidow (119) — kind of puts to lie the claim that M-J folks didn’t like what torture was doing to them, eh?
Dunno about treason, but I’m pretty sure “…high crimes and misdemeanors…” is used only as the standard in the Constitution for impeachment and removal from office. So I don’t think it would have any ongoing relevance once the office holder (Dick) has left the office.
Actually thought one could still be impeached even after leaving office, although the effect is primarily political; the impeachment process confirms that the officeholder violated their oath of office.
The crimes should remain punishable by civil law, with the extra fillip of political punishment. But what are the kinds of crimes we might attribute to someone in the highest offices which might not be those persons of lower office could commit? Are those without statue of limitations?
Yet another examination of Article II and the realm of Fourth Branch, I guess.
Och, you’re so right, of course post-term impeachment is possible; I myself have called for it on many occasions… if it were morning I’d plead not enough coffee. I guess I had in mind the idea that impeachment can be for “high crimes and misedemeanors” not specifically appearing in the crim code, and that, secondarily, impeachment in the House and trial in the Senate are not necessarily subject to ordinary civil trial nor criminal prosecution rules. Also, impeachment post-term can have concrete punitive effects, not only political — stripping pension and other benefits, for example.
But mainly: By contrast, anything Fitz would have been authorized to pursue would have had to be for regular Courts, with all the attendant limitations and requirements. Whole different way of proceeding, and if the statute has not tolled, then all that work and material would, perhaps, still be deployable whenever the situation was ripe; maybe soon, or even now.
Please be right.
But I’ve been pondering **exactly** the same points that you make — but I’ll add to your list by one or two.
I’d probably heard the name ‘Hank Greenberg’ in hushed tones any number of times and not paid one bit of attention until a few years back when EW wrote a post on him, which prompted me to go, “….hummmmmmmm…??!”
Greenberg-Traurig links to Abramoff, who was there doing lobbying… lemme guess, was it on energy issues when he was in Denver? (At least, I think he did a stint in Denver?)
Now, Greenberg links to AIG.
AI-fucking-G. Who got their credit derivatives through Congress as ‘insurance contracts’, meaning they were un-fucking-regulated.
So after $180 BILLION dollars to AIG (at least $20 million of it as pass-through to Goldman Sachs, but I digress…) no one can figure out that maybe all these dots connect?
Elliott Spitzer got outed literally the day he was going to Congress to expose AIG’s role in looting state pension funds. Literally THE day he was going to start pulling back the veil on AIG.
And we end up with detailed, almost blow-by-blow accounts of Elliott and the Hooker?!
And then… months later… months afterward… AIG surfaces in the news and Paulson (former head of GS) tells Pelosi and Reid that they have to fork over hundreds of billions to bail out…. AIG?!!!
Now, I have more background reading to do on Enron’s role in trying to get fund and own **energy pipelines** including around the Caspian.
Rayne, I fervently hope that you are right and that someone has the goods on Cheney and whoever his contemptible minions are/were. But some of it had to involve an awful lot of black money; it’s so big, and so huge.
And Elliott Spitzer has said repeatedly: “AIG was a the center of it all.” By which I presume that he means, “an incredibly corrupt system of fraud, theft, and black money”.
You do know that Maurice “Hank” Greenberg of AIG fame has nothing to do with and is not related to the law firm Greenberg Traurig right?
Don’t know if you went back again to that other thread since you posted here at (160); I left you something more which I had completely forgotten about, not having EW’s holographic memory.
It’s all connected, tenuously in some places, tightly in others, with the intersection being energy. We ended up in Iraq because of energy, OBL was pissed off at us because the U.S. was defending energy, AIG’s derivatives in no small way were impacted by energy markets, our economy tanked in part because of the energy market’s volatility last year — the connections are there.
But showing a conscious conspiracy would be impossible, especially at scale. It should be enough to say that we have been immersed in a global energy war and nearly every scandal we’ve examined is in some way tied to or impacted by it.
Not even the media emerges unscathed since they are owned by so few entities which in turn invest in both energy and in the politicos which protect energy; the media turns a blind eye to the scope and scale of this problem because they can’t make it sexy, nor can they bite the hand that feeds it. They ignore it like a two-bit-manwhore in the White House press gaggle.
Back in the day, Deep Throat said, “Follow the money.” But today money is only a proxy for energy.
EW and company, if you haven’t yet read this from the WaPo, do:
Internal Rifts on Road to Torment
Interviews Offer More Nuanced Look At Roles of CIA Contractors, Concerns Of Officials During Interrogations
Now guess who all the anonymous “nearly two dozen current and former U.S. officials” interviewed are.
Aw, poor misunderstood Mitchell. He was only trying to steer the agency away from far more brutal methods toward practices that would not cause permanent harm to detainees. I guess torture is the kinder, gentler alternative to drawing and quartering.
But he must not have been very effective, considering the numbers who died in custody.
Bob in HI
And I’m so glad that Mitchell and the WaPo corrected the number of times Abu Zubaida was waterboarded (84, not just 83), because it proves that EW just doesn’t know what she’s talking about. /snark
Did you catch that Mitchell and Jessen, while involved in SERE, called themselves “Masters of the Mind Fuck”?
Sounds like someone who was really looking out for those detainees./s
I actually suspect the WaPo is wrong. The CIA IG was basing their number off of watching the video. I find it hard to believe they didn’t count that last one along with the others. I also suspect that the last waterboarding was not “1,” (that is, just one pour), but probably closer to 10.
The WaPo is often very very bad at these kinds of facts.
(My Bold)
And note the waterboard timeline. I’m surprised that AZ has any mind left at all.
I can’t begin to imagine the helpless horror on the individual being tortured, and the depths of depravity that would allow the torturers to do this.
OT – reader of Tea Leaves, left you a couple things a few threads back, sorry to be so long getting to your comments.
Well, what a yummy little morsel you left. I hope to get back later today to catch up on the threads.
Wonder whether EW would ever open an ‘energy’ thread…?
So, maybe in the Cheney interview, Cheney himself sacrificed the guy that he told to put his neck in the meat grinder, namely Libby. And if Libby reads it in his newspaper, he might un-perjure himself and tell us what really happened…
You know, I was thinking about that–it would drive Libby’s wife nuts if that happened.
I’d pay a small forture to see that outcome!
I’d forgotten about Ms. Libby! She’d light a four alarm fire under the Scooter sure enough.
So if the DOJ “in 6-10 years it won’t matter” event is Dick croaking, they think Irving will tell all once Dick is gone (and no longer prosecutable)?
But in 6-10 years, WE will find out they had the evidence and CHOSE not to use it??? How do they get around that?
(silly me — past history shows that if they can push the worst disclosures out past the typical American attention span, they’re home free. And back in gov’t for the next round…)
My humble suggestion: factor in the idea that Cheney knew (or at least was 100% sure – to avoid any dispute about the matter), that Joe Wilson and Valerie Plame were responsible, respectively, for creating and furnishing the (bogus) Niger/Uranium documents.
Further, factor in the idea that the present administration also believes (or possibly knows) this to be the case.
Everyone is in a bind. What do JW and VP have to say on this matter?
Its hard to see a good way out for anyone.
Maybe I’m missing something, but I’ve always believed Doug Feith’s bumbling OSP group at DoD was responsible for the forged Niger uranium-yellow-cake-sale-to-Iraq documents. General Tommy Franks, y’all will recall, famously called Feith the “stupidest man in the world.”
The administration wanted a smoking gun to support its claim that Saddam had WMDs. Cheney and Rumsfeld commissioned and installed Feith & his OSP clowns at DoD. With Chalabi’s assistance, they recycled Curveball’s discredited bullshit and tried to bolster it with the forged Niger documents which were quickly produced on official Niger stationery and hoo-hah seals filched from the Niger Embassy in Rome around the time that Michael Ledeen and Richard Perle, who were Feith’s neocon buddies, met with Chalabi in Rome. The scheme quickly fell apart because some of the government officials listed in the documents were no longer serving in government and that’s why various foreign intelligence agencies immediately realized they were bogus and so informed the CIA, which prompted CIA to send Wilson to Niger where he had previously served as U.S. Ambassador.
I don’t believe there’s any question that CIA deliberately chose Joe Wilson for the job because the goal was to repudiate the administration in a very public manner. No one at CIA could do that. They needed a credible outsider with unimpeachable credentials and Valerie Plame’s husband was the perfect man for the job. The icing on the cake was the Medal of Freedom that Bush 41 awarded Wilson for his courageous refusal to backdown to Saddam Hussein when he was the U.S. Ambassador to Iraq during the Gulf War.
Cheney and Libby probably figured the administration, with the assistance of its media darlings, including Miller and Novak, could keep the lies going on indefinitely on the front pages of the newspapers and in the lead stories on the evening newscasts, thereby burying the truth. He didn’t know about Joe Wilson’s CIA-sponsored trip to Niger until Wilson’s editorial debunking the sale was published. This placed the public spotlight for the first time on the documents and that’s when the whole OSP engineered charade started unraveling.
Cheney and Libby must have been furious at first, but when they realized the CIA was responsible, they must have gone bat shit crazy. I believe fear set in when they realized Joe Wilson was no ordinary Wilson easily discredited with Rovian tactics, but a genuine American hero as decreed by Bush 41 whose credibility was virtually unassailable. I don’t doubt that Cheney considered assigning a JSOC assassination squad, but he probably rejected the idea because he would have realized that CIA likely was prepared to deal with that possibility. This must be how the decision was made to throw Valerie Plame under the bus by exposing her covert status.
I’m pretty sure they fully realized their peril by mid June. It was an us-or-them moment and from that point forward they placed their survival ahead of Valerie Plame’s career and potentially her life.
It became clear to Cheney’s cabal that Plame and those who were close to her in CP stood in the way of their immediate and long term plans. By exposing her, she was no longer a threat, Wilson was discredited, and it served as a warning to her co-workers at the CIA what could happen to them if their ‘products’ did not back up the regime’s propaganda.
My heavens, what a cheering comment. Will re-read most of this thread again, but first a quick note that you may want to trademark the phrase: ‘hoo-hah seals’.
That makes for a catchy little phrase to ask Congress, “Hey, any of you folks around the Capital Dome interested in who came up with the hoo-hah seals that cost the US thousands of lives, altered the futures of millions, and tanked the largest economy the world has ever seen…?”
Hoo-hah seals[TM] filched from the Niger Embassy.
With the wrong names on the stationary, no less.
If this were a novel, or a movie, no one would believe it.
I think my 127 is the 2-dimensional version.
I think this post should be what all the Sunday political talk shows should be covering.
Which is why we’re all here rather than there, huh?
EW – in your post above, where you say
“…Then, in yesterday’s brief, DOJ noted that some of what Cheney said was dissimilar from any released before…”
the link doesn’t go to DOJ’s brief, it goes to the petitioner’s memorandum on the cases.
BTW – if those are the case law issues the Judge asked for more briefing on (and from a Dist Ct decision too, not a Cir. Ct) it’s pretty revealing of where he’s going.
Ok- I’m just now getting around to looking at the filings so this is way much epu’d, but in the last thread, on DOJ’s problem adjectives, the links flip the filings, which is what probably carried over here.
What a juicy thread. Thank you. Only got through half and must go to work but will be back.
The statute idea went through my head while reading.
Are you in touch with Valerie Plame directly, ew? I bet she appreciates this enormously.
Jonathan Turley said that Obama will do all he can to NEVER prosecute Bush. Maybe because following the truth to such an offender and offenders (like Cheney) of truth will bring down oh the so many compromised on both sides of the aisle.
What is it in England, a “no confidence” vote for a politician? Can we do a “no confidence” vote for 90% of ours? Yeah, will leave a bit of a vacuum but a vacuum is what they have been giving most of us — financially speaking. Militarily speaking, it is even more evil than that.
How about a fucking wild thought here –
What if Fitz isn’t the champion of Justice we all think. What if his procecution of Libby was thought of as throwing just enough red meat to the left when he had COMPELLING reason to prosecute Bush and/or Dirty Dick.
What if it’s Fitz that the DOJ is protecting??
Sorry if someone else already thought of this, not time to read all the comments today.
“frank and full” is not equivalent to “truthful”. The “outing Plame” argument is a dead horse in the public arguments about this case: the Cheney supporters have “won”.
But if the 302 demonstrates clearly that Cheney lied to the FBI, it would be very difficult for anyone to argue against prosecuting them, although if he did perjure himself, it was under the Nixon-Cheney argument of “the President, and especially the Fourth Branch can’t break the law.”
Since the Obama Administration wants to do anything to avoid a “political” trial, they will do anything to avoid exposing Cheney to perjury charges…
…just speculation of course….
EW probably has a list of timelines and released info that makes this unlikely, but I would trend towards thinking that Cheney sold Rove in some way, shape or form. That way he made sure that Bush wouldn’t be able to put Libby through the meat grinder alone.
If they think they may have to turn over to the Judge, I think some of what was in Breuer’s affidavit was fairly calculated, and this is what he uses and the briefs reference more than once in their argument – that a Sr Gov witness like Cheney and their statement might be:
I don’t see Cheney incriminating himself or one of his own, but that’s just my opinion. Again, JMO, but I could see him thinking that too much is pointing to his office, himself, and his boy Libby even though their leak wasn’t the one that hit the presses and started the whole investigation. I’m sure Cheney knew who did what – maybe he sold Armitage, but while that might redirect some heat, it wouldn’t bring in the leverage that his hinting around about Rove might bring in.
Anyway – stack the facts and timelines and outcomes and I’m probably wrong and I’m too lazy today to try to work it through first before tossing it out. It would be why DOJ might think they could get the court on their side after a looksee though – weasel though Rove is, a court is going to be reluctant to order a release of an interview that has speculation about someone now a quasi-private individual (Rove – although his FOX gig isn’t all that private) and one whose reputation and livelihood could be adversely impacted by the release of a transcript that had “speculation” and “inference, insight and hunches” against someone who is not after all (inexplicably almost) a target and who was never charged.
Dislike the weasel all you want and question the murk around what happened all you will, but a court is going to be reluctant to put out an interview where the VP is providing hunches, insights or inferences putting someone else who was never charged into the target zone. It’s not the way things should work, if that’s what is in there. All fwiw, bc I’m a bad guesser and I’m gut based today, not fact based.
DOJ does a truly truly bad job of addressing the issues in the cases the Judge directed both sides to brief. Way bad. And to top that off, they go and trash talk Congress to the court, saying that one reason they aren’t turning over is bc Mukasey didn’t turn over to Congress and he didn’t turn over to Congress bc the big boys at DOJ decided of and on their own that Congress was just being “contentious” and everyone knows, DOJ gets to decide when, where, how, why and when Congress can and cannot conduct oversight. If Mukasey, who never could come to a mental pause point on torture, decided on one of his crotchety old man days that Congress was bothersome, that’s pretty much conclusive for all time, place and circumstance.
I’m going to return to what Tortoise said @ 127 and propose an amendment.
Tortoise hypothesized “that Cheney knew (or at least was 100% sure – to avoid any dispute about the matter), that Joe Wilson and Valerie Plame were responsible, respectively, for creating and furnishing the (bogus) Niger/Uranium documents.”
I propose changing that as follows.
The DOJ does not want to disclose the Cheney 302 because Cheney said, “Joe Wilson and Valerie Plame were responsible, respectively, for creating and furnishing the (bogus) Niger/Uranium documents.”
If Cheney said this, the DOJ lawyer would have accurately described it as “dissimilar from any [information] released before, and–more importantly–some of what Cheney said was not exactly like the information introduced into the record already on the same topics.”
I also believe Cheney may have said something regarding Rove, as Mary suggested @ 143.
It’s virtually impossible to work up any sympathy for Rove, but easy to do with Joe Wilson and Valerie Plame, especially Valerie Plame who not only had her career destroyed and life jeopardized, but also was denied a legal remedy.
This brings me back to my first post in this thread in which I suggested that DOJ may be attempting to protect itself from criticism for not prosecuting Cheney for false statements and or obstruction of justice. If Cheney lied about Wilson and Plame, I’m troubled by DOJ’s effort to conceal it’s refusal to prosecute him on the ground that it wants to protect Wilson and Plame from suffering further injury to their reputations by Cheney’s defamatory falsehood, unless DOJ states on the record that Obama’s DOJ would prosecute Cheney but for the expiration of the limitations period.
I don’t see that happening.
the fact that only Liz sticks up for Dick shows just how isolated this lover of the dark side has become
I get the sense from reading the postings above that many of you have fallen prey to the illusion that we live in genuine democracy. We don’t. Since the Eisenhower era (at least) we’ve lived under the thumb of a coup that controls “our government” for the benefit of revenue-stream to powerful banks and corporations, co-opting even our military and intelligence agencies. Prior to this last election, I was stunned to see such over-the-top levels of expectations and hope for how Obama would clean up the government and punish the crimes that had been committed in our names. For all of his charm, and perhaps even his sincerity, Obama either will not or can not right the wrongs of the Bush administration as to attempt it would guarantee his own destruction.
If all of this sounds ridiculous and implausible, you might reflect a little on the power of our corporate owned “news” organizations, how inexplicably bizarre their frenzies can seem and how puzzling their willingness to go after real stories is. For example, how many stories from these big companies concerning the Bush family’s connections to the bin Laden’s did you see? How many of them referred to Osama’s days as “Tim Osman” or the fact that Osama’s older brother had bankrolled GWB’s first oil company? How much noise has been made of the fact that massive surveillance of the American people began in the first weeks of the Bush administration, rather than after 9/11 (as it is justified with)? How much outrage was there over the quiet Pentagon announcement on 9/10 that trillions of dollars were unaccounted for in its budget? Our “news” is tightly controlled by forces that in turn, control us and control the feeble entity that we call “our government”.
If Obama had been any threat to this shadow government, he would never have been allowed to rise up to take the purely symbolic office of the presidency. Bush and Cheney will be protected as they were good soldiers in the traditional American process of creating war for the sake of profit, power and control of resources. Anyone who imagines that Obama is going to make any serious effort to address the chronic lawbreaking of the previous administration or to attempt to sweep away any significant portion of the corruption that pervades our systems is either delusional or simply not paying attention. I regret to say that “Hope” and “Yes, we can!” were and are, nothing more than slogans. You’ll be better off if you can come to grips with that.
It’s certainly plausible that many of your assumptions are correct. However, and speaking **only** for myself, I tend to view culture and education and ‘opportunity’ as key facets of human development that both reflect and drive it.
Just because the system is rotten, corrupt, predatory, and often inhumane doesn’t mean that I have to yawn and ignore it. People and cultures both change; it’s my sense that many in American culture are quite open to new ways of doing business, and new ways of thinking about money.
Once that happens, the Bushies and Cheneys are irrelevant.
The concentration of wealth and the corruption that used to be background noise are now daily topics; things are shifting.
The real reason- he committed perjury and they don’t want to prosecute him.
A person has to be under oath when they lie in order to commit perjury. Since Cheney wasn’t under oath when he was interviewed, he didn’t commit perjury.
However, a false statement and/or obstruction of justice charge might be appropriate, depending on the government’s ability to prove that he knew the statement was false when he said it and he lied with intent to obstruct justice.
Limitations to his scope
Perhaps Fitz was operating under limitations to the scope of his investigation that were not made public. My understanding of the difference between special prosecutor and independent counsel, of which Fitz was the former, is that special prosecutors still work for the AG, and have a defined scope as to what suspected/alleged crimes they can investigate.
Would Fitz have accepted secret limitations? Well, he accepted the fundamental limitation of scope of pursuing only the downstream crime that was the last step of what happened, the passing of Plame’s protected identity to folks without the right clearance to receive that info. It always seemed to me that for that last step to happen, all sorts of crimes had to be committed upstream, and to accept the limit of only pursuing the last step crime, anyone who took that special prosecutor job was accepting the general idea that only the last link in the chain, perhaps only a minor underling, would end up facing prosecution for what was really the result of a rather large criminal conspiracy, the WHIG and its many activities and offshoots, directed by the president himself. Long before Plame’s identity was passed to any reporter, it was exchanged among many people in the administration who may have had the right level of clearance, but who had no legitimate need to know such information.
If it were the case that the higher ups like Cheney were involved not merely in setting up the apparatus that systematically misused for private political ends sensitive, and even classified, information about public servants like Plame and many others, but may actually have been implicated in the last step of revealing some classified tidbit to a reporter, would Fitz accepting an order from his boss to not pursue that higher up really be more compromising than accepting the limitation to not go upstream at all to the wider crimes that made the last step possible? He may have been given the choice, “Cross this line, and we stop the whole investigation and no one is prosecuted.” I’m not sure that even someone with the highest integrity possible might not have accepted half a loaf in that situation, relying on the fact of Libby’s conviction on that last-step, downstream, crime, to motivate the public to demand that the crimes be pursued upstream. If the public has failed to appreciate that water flows downhill, and if someone has been found guitly of discharging it into the sea without thereby raising any cry to go after the folks who released it upstream, that would be the public that is lacking, and not the prosecutor.
Not only EPU’d, but I lost my comment. grrrr
retry
Judge Sullivan has apparently highlighted what he wanted the parties to address. As Crew lays out, the court was requesting more input on these standards:
So the court is singling out the law enforcement privilege for a closer look. This makes a lot of sense, because as best I can tell it is the only privilege properly before the court. DOJ, when it discusses why Cheney’s waiver could not be a waiver of the privileges asserted, points out that:
Who is there asserting the President’s privilege (Obama or counsel?) or the White House privilege (Greg Craig?)? DOJ isn’t the competent entity to choose for the WH and President whether and to what extent to assert privilege. So that would leave law enforcement for the focus.
But I’m still not convinced they have a competent invocation even on that front. While DOJ is trying to shore up Breuer’s qualifications as a crystal ball reader who can see into the future on unrelated cases, they mention that as head of the criminal div, Breuer is, “apart from the Attorney General and Deputy Attorney General, the individual most responsible for the development, enforcement and supervision of the application of all federal criminal laws.”
But that’s not really true in Fitzgerald’s investigation. That investigation was set up, deliberately, so that the head of Crim Div was not the individual (other than DAG and AG) most responsible for enforcement and supervision of criminal laws in that investigation – as a matter of fact, head of Crim Div was absolutely excluded from having enforcment and supervisory decisions with respect to the case.
So how you take an office that is specifically excluded from having a supervisory function in an investigation and interpose it to make the privilege assertions with respect to that investigation mystifies me. I don’t think that’s a competent invocation. My take would have been that you needed someone on Fitzgerald’s crew or the acting AG supervising the Special Prosecutor and his crew on the investigation.
All that “procedurally” before you get to the next issue of the substance of the invocation/argument – that the possible “concrete, prospective law enforcement proceeding” contemplated by law is the possiblity that there might be ANY possible future proceedings, ever, where a senior adminisration official might be interviewed, even though they implicitly concede that there is no prospective law enforcement proceeding that will be related to the operative facts in the Cheney statement.
Implicitly, bc easily the easiest way for them to win on law enforcment is for someone charged with investigatory powers tells the court that something in the statement may be operative in a pending investigation – a someone with supervisory powers (like Holder, or even Breuer here) asserts that there is a prospective investigation related to something in the statement.
No one tries that.
Yet they do still seem to think that if they get the statement to the court, the court will side with them. That takes me back to my spec on Cheney trying to send Fitzgerald down paths other than the Libby/Cheney path with statements involving people never charged.
all fwiw, if my comment doesn’t disappear this time.
Well the bottom line is that nobody affirmatively asserted anything at the critical time it needed to be asserted (i.e. before or during Fitz’s interviews), much less anybody competent to do so. Privilege fail kind of on all counts if you ask me.
For EP and deliberative I think that’s right, but I think they are right that the law enforcement privilege to not release info that might harm prospective or pending prosecution wouldn’t be affected by whether WH, OVP, Cheney etc. effectively aserted privilege, bc it belongs to the DOJ and implicates a different set of factors (future/pending prosecution).
I think they lose on that too, based on the not so much tenuous, as non-existent, threads of “future prosecution” they try to assert. But even before you get to that assertion, I think they don’t have a competent party to make the assertion as to the evidence from the Libby investigation. I think it has to be someone who can claim on behalf of themselves of their office a direct link to that investigation – I don’t think you can have a stranger to the litigation make the claim of privilege, and Breuer’s office is a stranger to that litigation, by deliberate choice of his superiors with respect to that litigation – the Acting AG for that litigation.
Fwiw – which probably isn’t much.
completely agree with every bit of that.
Fitz “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.”
Obama, Holder, Whitehouse, Leahy, Waxman, Pelosi….”no one is above the law” Really? The peasants just do not believe you folks