Tom Davis Supports Waxman’s Demand for Cheney’s Interview Materials

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Retiring GOP Congressman Tom Davis must have accepted that we’ll soon have a Democrat in the White House. He has joined Henry Waxman in declaring Bush’s (Mukasey’s, really) invocation of executive privilege with regards to the Cheney interview notes in the CIA Leak Case to be improper.

 On a bipartisan basis, the Committee finds that the President’s assertion of executive privilege over the report of the Vice President’s interview was legally unprecedented and an inappropriate use of executive privilege. The assertion of executive privilege prevents the Committee from having access to a complete set of records and thus results in the Committee’s inability to assess fully the actions of the Vice President.

Mind you, I don’t know what effect this report will have. As we’ve seen with the US Attorney subpoenas, the White House can stall anything until the end of the Administration (and until Bush pre-emptively pardons Cheney and Libby for outing a CIA spy). At which point–given the way the polls are headed–Obama’s new AG could turn over the Cheney interview materials. 

I’m most curious about Davis’ cooperation on this, but not Waxman’s demand that DOJ unredact the reports the Committee already has (these redactions include references to both Bush and Cheney), because I believe Davis was party to the Administration’s second firewall on the CIA Leak Case–the Cheney claim that he could (and presumably did) insta-declassify Plame’s identity all by himself.

When the Oversight Committee had a hearing on CIA Leak Case, remember, Davis went to some length to try to get Bill Leonard to state that both the President and the Vice President had authority to declassify at will. 

And, after the country’s head of Information Security, Bill Leonard, asserted at the Waxman hearing that the President has absolute authority to declassify things, Congressman Tom Davis tried to sneak such authority for the Vice President into the Congressional Record:

Davis: Mr. Leonard, let me ask. Does the President or the Vice President have the authority to declassify on the spot?

Leonard: As I mentioned earlier, Mr. Davis, the President’s authority in this area is absolute, pursuant to the Constitution, …

Davis: So they can do it on the spot. Can they declassify for limited purposes?

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Once Again, the Federal Government Uses Valerie to Screw Joe

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I’m not so much surprised that Judges Sentelle and Henderson dismissed the Wilsons’ appeal yesterday–I’m more surprised by the false ignorance through which they dismiss the Wilsons’ Bivens complaint (a Bivens claim allows a person to sue federal agents when they violate that person’s constitutional rights).

At the rhetorical foundation of Sentelle’s opinion lies the repetition of one of the biggest myths about the Plame leak–that Rove (and for that matter, Libby and his secret July 9 conversation with Novak) had nothing to do with Robert Novak’s article outing Plame, that Armitage acted alone.

In July, Libby talked to Judith Miller of The New York Times and to Matthew Cooper of Time magazine; Karl Rove talked to Matthew Cooper of Time magazine and to Chris Matthews, host of MSNBC’s “Hardball;” and Deputy Secretary of State Richard Armitage met with reporter Robert Novak. Armitage, who had learned of Valerie Wilson’s CIA employment from a State Department memo, told Novak that Valerie Wilson worked at the CIA on issues relating to weapons of mass destruction. Novak then wrote an article that was published in several newspapers, including The Washington Post and the Chicago Sun Times, on July 14, 2003.

[snip]

The publication was the result of a disclosure by Deputy Secretary of State Armitage of information about an individual contained in State Department records.

Um, sure, the publication was the result of a disclosure by Blabby Armitage. But then, that State Department memo was written as a direct result of Libby’s own oppo research, so it was also the result of Libby’s attempt to gather dirt on Joe Wilson. And of course, Novak wouldn’t have written his column without the "confirmation" from Rove, who got his information from some other source; he has always denied seeing the INR memo. So it is likely that that letter also was the result of Dick Cheney’s own efforts to collect information with which to embarrass Wilson. (Novak’s column was also the result of the Off the Record club brokering the leak, too–private citizens who could have much more easily been sued, but that’s a weakness in the Wilsons’ suit, not the Court’s opinion.)

I suspect there’s a reason for the Court’s feigned ignorance here. Read more →

Michael Isikoff’s Chat with Cheney’s Lawyer

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

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

[snip]

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

Granted, I was on a business trip in India when this all went down. But this was a detail I missed. "Cheney’s lawyer told reporters"? I was used to Libby’s lawyer prior to the indictment, Joseph Tate, telling reporters all manner of things under the cover of anonymity. Robert Luskin’s anonymous, wild spinning of reporters? Kind of goes without saying. But Cheney’s lawyer, Terry O’Donnell?

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

A lawyer familiar with the investigation, who asked not to be identified because of the sensitivity of the matter, told NEWSWEEK that the "president declassified the information and authorized and directed the vice president to get it out." But Bush "didn’t get into how it would be done. He was not involved in selecting Scooter Libby or Judy Miller." Bush made the decision to put out the NIE material in late June, when the press was beginning to raise questions about the WMD but before Wilson published his op-ed piece. [my emphasis]

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

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

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

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Scott McClellan Dismantles Cheney’s Plame Firewall

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When evidence from the Scooter Libby trial showed that Dick Cheney had probably ordered Scooter Libby to leak Valerie Plame’s identity, Cheney built a firewall that legally excused the leak–but still insulated George Bush from involvement in knowingly outing a CIA spy. Cheney claimed, on at least two occasions, that he himself had the authority to declassify classified information, presumably up to and including Valerie Plame’s identity. Yet new information from Scott McClellan dismantles Cheney’s firewall; McClellan reveals that in the same period when Cheney was claiming he had the authority to declassify such information, the White House Counsel’s Office under Harriet Miers disagreed that the Vice President had such declassification authorities.

The Evidence Cheney Ordered Libby to Leak Plame’s Identity

gx2a-july-8-leak-to-judy-note.jpg

In spring of 2006, evidence was accumulating that Dick Cheney had ordered Scooter Libby to leak Valerie Plame’s identity to Judy Miller. We learned (and then, during the trial, we saw) that on July 7 0r 8, Cheney had ordered Libby to leak something to Judy Miller. We learned from Miller’s newspaper account (and then, during the trial, from her testimony) that after receiving that order, Libby proceeded to leak Plame’s identity to Miller.

And, as we got more information, we learned that Scooter Libby’s cover story for that order and that leak–that Cheney had only ordered him to leak the National Intelligence Estimate–could not be true. That’s because (among other reasons), Libby claimed he did not leak the classified information Cheney ordered him to leak until he got reassurances from David Addington that the President could insta-declassify classified information, thereby making such a leak legal.

I had previously spoken to our General Counsel, David Addington, and our General — and ask our General Counsel, does the President have the ability if he wants to take any document and say it’s declassified, go talk about it?

And Libby further explained that, at the same conversation where he got those reassurances from David Addington, he asked about Wilson’s probable contract with the CIA.

Q. And can you recall what — in your conversation with Mr. Addington about declassification, do you recall if you discussed any other topics with Mr. Addington at the time?

A. Yes. I also discussed in that conversation or close to that conversation, the question of whether there was a contractual obligation for Mr. Wilson.

Given these details, Libby’s notes, and Addington’s testimony (Addington said the conversation took place after Joe Wilson’s op-ed appeared), we can date this conversation to July 7 or 8. (Indeed, Libby even says the conversation declassifying the information itself may have happened on July 7 or "some time at the end of the previous" week.) Read more →

Bob Novak Is One Key to Libby’s Aspen Letter

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Alright. Admittedly this discovery is rather dated. But hell–what are blogs for, if not to rehash that old Aspen letter Libby sent Judy in September 2005? Especially if, after rehashing the letter, you discover that Bob Novak may be there hiding among the Aspen trees?

Back when I first analyzed the letter, I compared how Libby’s description of the testimony of journalists matched up against published accounts about that testimony.

Because, as I am sure will not be news to you, the public report of every other reporter’s testimony makes clear that they did not discuss Ms. Plame’s name or identity with me, or knew about her before our call.

I compared that statement to the public reports from Tim Russert and Matt Cooper and agreed (after some coaching from readers), that Russert "did not discuss Ms. Plame’s name or identity with [Libby]" and Cooper "knew about her before [Libby’s] call." Surprise! Even in a cryptic letter, it appeared, Libby was being transparent and honest with Judy. Which struck me as rather suspicious–that Libby might tell such transparent truths in such cryptic language.

But I did that analysis a month before I first speculated that Libby had spoken to Bob Novak the week of the leak, and a full year before Libby’s and Novak’s conversation on July 9 was confirmed in court filings. That is, when Libby wrote the Aspen letter, we didn’t know that Novak was among the journalists who had testified about a conversation with Libby, but Libby knew it. And if my reading of the script Libby sent Judy via Steno Sue and Pool Boy was correct, then Judy would have known about the conversation, though not that Novak had testified. As a reminder, here’s how I first speculated that Libby and Novak had spoken:

Steno Sue’s Secret Message
The morning Judy testified the first time to the Grand Jury, one of Libby’s allies managed to get the following passage inserted into the newspaper that will replace the NYT as the nation’s newspaper of record.

[snip]

The Novak Surprise
Now we come to far and away the most curious part of this coaching session:

Libby did not talk to Novak about the case, the source said.

Is this still a message for Judy? Why would Libby’s friend need to remind Judy that Libby hadn’t spoken to Novak in the case? Unless she knew that he had spoken to Novak? I think it highly possible that Libby’s friend is telling Judy not to mention the fact that she knew Libby spoke to Novak about this case.

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Caretaker for the Regime

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Carrie Johnson’s got an interestingly-timed profile of Michael Mukasey today. She accurately describes Mukasey as trying to, above all, just get to the end of the term with no big new scandals erupting.

From a book-lined den on the fifth floor of the Justice Department, the attorney general is watching the clock.

Tenure, after all, is short for Michael B. Mukasey, a retired federal judge who has just six more months to restore confidence in a department battered by allegations of improper political meddling before time runs out on the Bush administration.

Mukasey is one of several elder statesman who accepted the president’s request to rejoin government late in the second term, only to confront increasingly intense political battles and the detritus left by their predecessors. Yet, unlike Michael Hayden at the CIA and Robert M. Gates at the Defense Department, Mukasey has complicated his task with his steadfast refusal to reopen old wounds and purge the ranks of his roiled department.

Senate Judiciary Chairman Patrick J. Leahy (D-Vt.) recently appraised Mukasey as "content to serve as a caretaker for the regime of excessive executive power established by the Bush administration."

As Democratic lawmakers and White House officials tangle over how actively investigators should explore the past, the attorney general generally has sided with the administration and declined to open criminal probes on matters that predate him.

In the past month, Mukasey has rejected requests to name a special prosecutor to examine whether Cabinet officials committed war crimes when they approved harsh interrogation tactics for terrorism suspects. He refused to take a second look at a public corruption case that 52 bipartisan state attorneys general say smacks of selective prosecution. He refrained from characterizing the department he joined last November as torn apart by partisan discord even though more than a dozen officials, including his forerunner, Alberto R. Gonzales, departed amid a politically charged firing scandal.

I say this is interestingly-timed because most of the stonewalling she lists are the same things Democratic Senate Judiciary Members listed a few weeks back when Mukasey testified before the Committee: torture, Siegelman, the politicization of DOJ (she missed John Yoo’s OLC opinions). But that was then, this is now, and in the interim two weeks, two conflicts have arisen, which both threaten to make Mukasey the point of controversy, rather than the guy trying to tamp it down.

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Fitzgerald Learned Rove Was Trying to Fire Him in 2005–While Rove Was Still Under Investigation

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In a supplement to his responses to the House Judiciary Committee, Patrick Fitzgerald confirms what we’ve always suspected: Karl Rove was trying to have Patrick Fitzgerald fired while Fitzgerald was still investigating Rove for his role in leaking Valerie Wilson’s identity–and the timing lines up perfectly with the Administration’s efforts to fire a bunch of US Attorneys.

Remember back in June, when Fitzgerald publicly suggested he had more details to share with Congress about Rove’s efforts to get him fired?

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

Well, it turns out Fitzgerald did share those details with Congress. And those details make it clear that Fitzgerald learned Rove was trying to fire him while Fitzgerald was still actively investigating Rove’s role in the leak of Valerie Wilson’s identity.

In my answers submitted on May 2,2008, I noted in my response to Question Eleven that I omitted discussion of when I first learned that I might be asked to resign as United States Attorney. I declined to answer more fully due to the then pending trial of United States v. Antoin Rezko in the Northern District of Illinois. With that trial concluded, I can briefly elaborate further: I learned some time in or about early 2005 from agents of the Federal Bureau of Investigation ("FBI") that a cooperating witness (who later testified at the Rezko trial, but not about this topic) had advised the FBI agents that he had earlier been told by one of Mr. Rezko’s co-schemers that it was the responsibility of a third person in Illinois to have me replaced as United States Attorney. I should be clear that I did not understand that any putative effort to replace me as United States Attorney was related to my conduct as Special Counsel but understood instead that it was related to the investigative activities of federal agents and prosecutors conducting a corruption investigation in Illinois. [my emphasis]

As a reminder, here’s the allegation with all the names handily added in (though I think Fitzgerald is referring to someone besides Ata, because Ata was not yet cooperating with the Rezko prosecutors):

In a hearing before court began, prosecutors said they hoped to call Ali Ata, the former Blagojevich administration official who pleaded guilty to corruption yesterday, to the stand.

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Wilson Statement on Bush’s Invocation of Executive Privilege to Protect Cheney

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Joe Wilson sent the following response to Bush’s invocation of executive privilege to hide Dick Cheney’s involvement in ordering the Plame leak:

Today the president took the unprecedented step of asserting executive privilege to thwart congressional efforts to review Vice President Cheney’s interview with Special Prosecutor Patrick Fitzgerald concerning the betrayal of Valerie Wilson’s covert CIA identity. We agree with Congressman Waxman that the position taken by the president is ludicrous.

The American people have a right to know what role the vice president played in the leak of Ms. Wilson’s covert identity for political purposes. The fact that the Attorney General is recommending the assertion of executive privilege reveals that this Department of Justice is as beholden to the White House as that run by former Attorney General Alberto Gonzales.

Given the White House’s continued efforts to cover up the truth and subvert legitimate congressional inquiries, our civil suit may be the only way the American people will learn the truth. We seek to hold those public officials responsible for this serious breach of national security accountable for their actions, and to ensure that future generations of public servants are not tempted to engage in similarly despicable behavior.

Here’s an update on the status of their case with a link to support the suit.

Bush Invokes Executive Privilege to Shield Cheney’s Role in Outing Valerie Plame

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Working on confirmation now, but I’m hearing word that George Bush just took his second step in the cover-up of Cheney’s leak of Valerie Wilson’s identity–by invoking executive privilege to shield Cheney’s interview with Fitzgerald.

No, I’m not surprised by this, if this turns out to be true. But if IS true, then it marks the second time that Bush will have used his privileges to shield something either terribly embarrassing–or downright illegal.

Update: Oversight Committee won’t confirm–but they have postponed their vote on contempt for Attorney General Mukasey to review their options.

Update: Here are the documents (Mukasey to Bush; Mukasey to Waxman). Note, Mukasey asked Bush to invoke executive privilege over this. What a fucking corrupt disgrace.

Update: Here’s Mukasey:

I am greatly concerned about the chilling effect that compliance with the Committee’s subpona would have on future White House deliberations and White House cooperation with future Justice Department investigations. For the reasons set forth above, I believe it is legally permissible for you to assert executive privilege. I respectfully request that you do so.

Shorter Mukasey: "Please don’t make me go to jail to cover-up the Vice President’s smear job!!"

Update: Waxman hits the right notes:

The claim of executive privilege is ludicrous.
We are not seeking access to the communications between the Vice President and the President. We are seeking access to the communications between the Vice President and FBI investigators. The Vice President talked with the FBI investigators voluntarily and he did so knowing that what he said could be disclosed publicly in a criminal trial. Mr. Fitzgerald told us that "there were no agreements, conditions and understandings" that limited Mr. Fitzgerald’s use
of the interview in any way.

This unfounded assertion of executive privilege does not protect a principle; it protects a person.

The President is wrong to shield Vice President Cheney from scrutiny. In our system of government, even the Vice President should be accountable for his actions.

Five Years Later–and the Attorney General Still Maintains the Cover-Up

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Five years ago today, on a Monday morning just like today, this happened:

Our bedroom was just beginning to show the first hints of morning light on July 14 when Joe marched in, dropped the newspaper on the bed, and said in a tight voice, "Well, the SOB did it." He set a steaming mug of coffee on my bedside table and left the room. What? I struggled to wake up. I sat up, switched on the lamp, and opened the Washington Post to the op-ed page; I didn’t know what I would find, but I knew it wouldn’t be good. Rovert Novak had written in his column that "Wilson never worked for the CIA, but his wife, Valerie Plame, is an Agency operative on weapons of mass destruction."

And yet, five years later, through the President’s efforts to silence Scooter Libby and through the Attorney General’s determination to hide the Vice President’s and President’s own testimony, we still have had no full accounting of the leak of Valerie Wilson’s identity. In fact, most of the press attention has been focused on the following sentence in Novak’s column, the one that–Richard Armitage apparently convinced Patrick Fitzgerald–derived from a stupid and careless but ultimately ignorant leak.

Two senior administration officials told me that Wilson’s wife suggested sending him to Niger to investigate the Italian report.

And so, largely because once an investigation was announced, Novak told a different story about that first line–about how he learned of Valerie’s maiden name and about how he learned of her status–than he told just after the leak, when he said "They thought it was significant, they gave me the name and I used it," the press just bought that implausible, revised story. Novak’s new cover story got so far-fetched that he was comparing Valerie Wilson with a person running a congressional campaign in Wyoming.

I call all kinds of politicians operatives. … Someone’s running a congressional campaign in Wyoming, I call him an operative.

And even when it was revealed that there had been a third conversation that went into Novak’s column, a conversation between Libby and Novak, a conversation they both made efforts to hide for three years, almost no one went back to scrutinize Novak’s column and sources again. Read more →