Yeah, but you see, you would need a lawyer on the case to actually freaking make the argument. I ain’t holding my breath…..

Hey folks, on a topic of special interest here at EW, October is National Breast Cancer Awareness Month and my friend Blue Girl has a fantastic new post on breast cancer, its effect on its victims, and its intersection with healthcare reform. Go give it a read and a recommend (if so inclined).

A lot of the issue of who is and is not a third party goes to what had me so upset way back when Schumer made his bargain with Comey to let DOJ inhouse the investigation. That was back before I came by FDL, but it’s why I have never had a great view of Comey – I always thought that was Comey and Schumer pulling the wool over everyone’s eyes. As time went by and nothing was done, I got resigned to that – then when Fitzgerald pulled off his initial press conference on the Libby indictment I really thought, “hey, maybe this isn’t going to be as bad as you thought it would be” but in the end, we saw things die with a whimper and Fitzgerald send Conyers those responses that said all the hullabaloo around his “special” appointment was really all only intended to create a “perception” of independence.

But to poke and dig on some of this, on the third party front there seems to be a lot that Sullivan didn’t take into account (and maybe none of it was briefed), but, for example, we do have a public record of Cheney and Addington arguing that the OVP isn’t actually a part of the Exec branch, it’s “fourth branch.” Under Cheney’s own posit, then, there’s not Exec privilege that attaches. Ok – that’s not a good argument, I just kind of feel like now and then people who make insane statements ought to have them come back to haunt them in an admission against interest setting.

More to the point, when Sullivan starts looking at Fitzgerald’s “unique” role and what that means as to whether or not he was a “third party” or someone just having a little “inter-agency” chit chat between OVP and DOJ …

Nevertheless, and notwithstanding the unique role of the Special Counsel as both part of and independent from the executive branch, this Court agrees with DOJ that the discussion between Fitzgerald and Vice President Cheney is more appropriately considered a protected inter-agency disclosure

Sullivan doesn’t seem to think that getting input from Fitzgerald on that issue is necessary to its resolution. Fitzgerald actually took a position in litigation on a very similar issue in the Libby trial. There was a whole exchange of briefings and an order entered by Walton with respect to alignment of the parities, where Fitzgerald argued, successfully, that the court could NOT align his office with the Exec branch agencies. That should probably have been touched on in the filings here if the court was going to get to that issue.

I don’t think you can argue that the office of Special Counsel is before Sullivan’s court just bc Bradbury and Barron were/are before the court and have filed declarations. A special acting AG was appointed for the litigation. Already you have to wonder why the AG, Ashcroft, would have had to recuse from supervision if all that was happening was that DOJ was having non-adversarial inter-agency chit chats. Still, he did and you then had a delegation from Comey to Margolis on the supervisory front and Fitzgerald running the office and investigation. Seems to me that if someone is going to rule that OSC or OSP was only having an inter-agency chit chat, that office needs to be allowed to take a position on that assertion. Which means you have to figure out if the acting authority is still with Margolis and, if not, where it went – or you get Fitzgerald. I’d have to both find the motions and Walton’s order and read them again (which isn’t going to happen in the next day or so), but it seems to me that you might have had another court already make a ruling to the contrary based on the same nucleus of operative facts. OTOH, I think some of what Fitzgerald may have argued then (like maybe the fact that he was using subpoenas and judicial process to get info, IIRC), might load the scales differently vis a vis a “voluntary” statement from OVP. Still, I don’t see how you get a resolution of whether or not he was a third party without pulling his office before the court to say some yeahs or nays and without looking at the prior ruling by Walton.

Then you have to take notice of the actual effect of Sullivan’s ruling. He’s basically saying that when you have a criminal investigation being conducted, the FBI should have a heckuva time ever coming after anyone for making a false statement, bc their statements to the FBI are always protected from being revealed to a court as inter-agency chit chats. That makes no sense. Granted – in this case the law enforcement issue is presumptively over and done with and so the law enforcement privilege was properly held to not apply, but the Libby case itself, based as it was on so many false statements, some of which were only in the context of the OSP FBI investigators chit chats with “inter-agency Libby” stands for the proposition that OSP was indeed viewing the provision of information by Exec branch representatives as provisions to which criminal consequences could (and did) attach. Inter-agency chit chats as part of the deliberative process couldn’t have those kind of criminal aspects that attach to them and that is just glossed over. It’s the “then a miracle occurs” part of the equation.

So – if you’re not having an interagency chit chat, then you look to the content of the discussion (which DOJ is arguing was about privileged matters). To start with, they say there rare two sentences (that’s not much is it?) that involve direct communications between the President and Cheney and to which they are going to attach Presidential privilege. For much of the rest, they are saying that Cheney was describing stuff that was all a part of the “deliberative process.”

So let’s poke that a bit. As the court notes and quotes, the deliberative process is supposed to involve policy decisions.

“The purpose of the deliberative process privilege is to ensure open communication between subordinates and superiors, to prevent premature disclosure of policies before final adoption, and to avoid public confusion if grounds for policies that were not part of the final adopted agency policy happened to be exposed to the public.”

So – in the context of the OSP’s interview with Cheney, what would have been the “policy” issue? Violating law isn’t a matter of policy – and while we’ve heard a lot about not criminalizing policy, I’d say it’s pretty clear that you also shouldn’t be able to do the opposite “policy-ize” crime. So discussion about things that Fitzgerald was investigating as a crime (the Plame leak) and also discussions about things that he might have thought he could fit into his mandate (like the leaks of the national security assessments handed off to Judy Miller in violation of the Nat Sec Act, whether or not they were “insta-declassified”) just flat don’t fit the “policy” constructs of the deliberative privilege. The only privilege to covering up discussions of the commissions of crimes that did then actually occur [I’ll give the benefit of the doubt on the deliberative front to discussions of crimes that folks decide NOT to commit] is the Fifth.

So I think there should be some push on the issue that discussions of violations of the NSAct, the IIPA, or discussions of providing false statements are not, and cannot be, discussions of “policy.” If those discussions are of acts that did not then take place – maybe those would fit in, as the deliberative process should allow for someone to highlight to the decision makers that they are going to be breaking the law and let them respond accordingly. But with respect to acts that are taken, you can’t convert crime to policy just by discussing it within the Exec branch. So no deliberative privilege attaches.

CK makes a point above about the privilege being Bush’s rather than Cheney’s if you were looking at policy matters rather than plotting criminal acts, but while I agree I think that Bush would have had to have acted a long time ago to raise the privilege and he never did. At least when Fitzgerald was making his filings to be dis-aligned with and from the Exec agencies. IMO, fwiw, which obviously isn’t much bc no one makes my arguments and the courts aren’t flocking to rule on them. As a matter of fact, I’m much more distracted by and bummed over Hellerstein’s ruling than interested in Sullivan’s. Which I guess is why I’m so bitchy. IMO the real privilege that attached should have been one that was Cheney’s – a privilege against self incrimination. If he decided to forego that privilege under the posit that, “the President can’t break the law and whatever you do, it isn’t a crime if the President oks it” then, well, he should just have to live with the consequence of making the wrong call on that. Except, of course, that he didn’t make the wrong call. Holder, Obama and their compatriots on the courts and in Congress have proven that Nixon was right.

/incoherent ramble.