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

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

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

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

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

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

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

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

Mukasey: As I said, that was not…

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

Mukasey: It would.

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

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

Waxman, Fitzgerald, and Mukasey

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

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

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

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

Shorter Fitz: blame Mukasey.

Which Waxman promptly did.

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

[snip]

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

DOJ’s Attempt to Shield Obstruction of Justice

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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Here’s a little timeline, just for fun.

May 30: Conyers troubled by McClellan’s revelations

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

June 9: Conyers schedules McClellan testimony for June 20

June 11: Mukasey has his underling reply to Waxman

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

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

June 23, 2008: Due date on Oversight subpoena

June 24, 2008: DOJ tells Oversight to fuck off

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

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

June 27, 2008: Oversight requests documents from Fitzgerald

July 3, 2008: Due date for documents from Fitzgerald

July 7, 2008: Due date on HJC subpoena

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

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

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

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

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

What Is Michael Mukasey Helping Dick Cheney to Cover Up?

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

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

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

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

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

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

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

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

Read more →

Mukasey’s Subpoena

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Is here.

I’m going to run out to do battle with Sears again (they’ve got a new dehumidifer for me, and boy is it muggy here in the Midwest), so I won’t get a chance to analyze the full–and long–laundry list till I win (!) my next battle with Sears.

But just as a teaser, here’s how Conyers worded the demand for the Bush and Cheney interviews.

All documents from the office of former Special Counsel Patrick J. Fitzgerald described below for which the former Special Counsel has not determined that disclosure would be barred by Federal Rule of Criminal Procedure 6(e) governing grand jury secrecy:

a) Complete and unredacted versions of transcripts, reports, notes, and other documents relating to any interviews outside the presence of the grand jury of President George W. Bush.

b) Complete and unredacted versions of transcripts, reports, notes, and other documents relating to any interviews outside the presence of the grand jury of Vice President Richard Cheney.

c) Complete and unredacted versions of 302 interview reports relating to interviews of the following witnesses in the investigation: Karl Rove, Scooter Libby, Scott McClellan, Dan Bartlett, and Andrew Card.

I wonder if Bush and Cheney are rethinking their decision not to appear before the grand jury yet?

HJC: Scott McClellan Testimony

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Shoot, they snuck in and restarted the hearing while I was vomiting after the FISA vote. Watch along on CSPAN3 or the HJC feed.

Ric Keller is complaining that Scottie raised Bush’s forgetfulness about his use of cocaine in the book.

Robert Wexler up. Your book raises questions about Admin, avoids accountability. How Scooter revealed identity of Plame. Inconceivable that Libby acted alone. President and VP have denied ordering this leak. You state that you cannot believe Bush ordered the leak. You do not defend Cheney in your book. Why not.

SM He keeps things close. I do not know his involvement. Cloud over VP. There’s a lot of suspicion there. Questions not answered.

RW VP could have authorized the leak.

SM Can’t rule it out.

RW We know Cheney tried to cover up leak. Cheney called you. VP starts to write, President asked Libby to stick neck in meat-grinder. Cheney is the only one left. The only suspect to have ordered the leak. More than enough to open up impeachment hearings. Pardon power to deflect investigation. Would be an abusive crime of highest order. Thank you for exposing some of the lies.

Goodlattte: Were you fired?

SM Three proposals for book.

Goodlatte: number of TV appearances? Should you have raised the allegations in the book earlier?

Linda Sanchez: Firing US Attorneys, pressure US Attorney PatFitz. To your knowledge, when Rove suggest to fire USAs, he had already appeared before GJ in Plame. Aware of conversations about firing Fitz?

SM No

Sanchez Bush’s promise to fire people. What prompted Bush to raise the bar?

SM Rove’s involvement.

Sanchez Who should he have fired?

SM Rove

Read more →

Waxman Subpoenas the Bush and Cheney Transcripts

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Well, it looks like Henry Waxman isn’t going to wait around for HJC to follow my suggestions on getting the Bush and Cheney transcripts.

From the Oversight Committee:

Oversight Committee Subpoenas Justice Department for Plame Documents
Today, the Oversight Committee issued a subpoena to Attorney General Mukasey compelling the production of FBI interview reports of Vice President Cheney and President Bush and other documents regarding the outing of covert CIA agent Valerie Plame Wilson.

Update: the due date on the subpoena is June 23. It asks for the same materials requested in Waxman’s June 3 letter.

How to Get the Transcripts

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

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

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

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

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

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

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

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

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