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Peter Baker, Meat Grinder for Bush

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In the NYT, Peter Baker presents his version of George Bush’s decision not to pardon Scooter Libby as the best pitch for his new book, Days of Fire, Bush and Cheney in the White House. Given that the piece is not at all newsworthy (and as I’ll show, Baker’s version of it is badly flawed), I suppose Baker thought that Bush’s refusal to fulfill Cheney’s request supports Baker’s contention that Bush, not Cheney, was the dominant player in the relationship.

One piece of evidence Baker provides to support that contention is this quote from Alan Simpson.

Cheney “never did anything in his time serving George W. that George W. didn’t either sanction or approve of,” said Alan Simpson, a former Republican senator from Wyoming and a close friend of Cheney’s.

If Baker believes Simpson’s claim, however, then his entire reading of Cheney’s involvement in leaking Valerie Plame’s identity is wrong (and not just because he quotes Liz Cheney pretending PapaDick had no role in the leak).

Baker provides dialogue suggesting that Bush and certain lawyers — Baker identifies them as White House Counsel Fred Fielding and his Deputy William Burck — debated whether Libby was protecting Cheney.

“All right,” the president said when the lawyers concluded their assessment. “So why do you think he did it? Do you think he was protecting the vice president?”

“I don’t think he was protecting the vice president,” Burck said.

Burck figured that Libby assumed his account would never be contradicted, because prosecutors could not force reporters to violate vows of confidentiality to their sources. “I think also that Libby was concerned,” Burck said. “Because he took to heart what you said back then: that you would fire anybody that you knew was involved in this. I just think he didn’t think it was worth falling on the sword.”

Bush did not seem convinced. “I think he still thinks he was protecting Cheney,” the president said. If that was the case, then Cheney was seeking forgiveness for the man who had sacrificed himself on his behalf.

Baker implies that Bush’s conclusion — that Libby believed he was protecting Cheney — convinced himself it would not be ethical to pardon Libby based on Cheney’s insistence. (Note, whatever you and I were paying Burck, it was far too much, because his logic as portrayed here is pathetically stupid.)

That would imply that Bush believed — Burck’s shitty counsel to the contrary — that Cheney played some role in the leak.

But Alan Simpson, who truly does know Cheney well, says Cheney never did anything without either Bush’s sanction or approval. Which would imply that whatever Cheney did to leak Plame’s identity, he did with the approval of Bush.

Which brings us to the other gaping hole in Baker’s account (aside from his complete misunderstanding of the evidence surrounding the leak itself). Baker uses the word “lawyers” 11 times in this excerpt, including (but not limited to) the following.

In the final days of his presidency, George W. Bush sat behind his desk in the Oval Office, chewing gum and staring into the distance as two White House lawyers briefed him on the possible last-minute pardon of I. Lewis Libby.

“Do you think he did it?” Bush asked.

“Yeah,” one of the lawyers said. “I think he did it.”

[snip]

At the time, Bush said publicly that he was not substituting his judgment for that of the jury. So how would he explain a change of mind just 18 months later? That was the argument Ed Gillespie, the president’s counselor, made to Cheney when he came to explain why he was advising Bush against a pardon. “On top of that, the lawyers are not making the case for it,” Gillespie told Cheney, referring to the White House attorneys reviewing the case for Bush. “We’ll be asked, ‘Did the lawyers recommend it?’ And if the lawyers didn’t, it’s going to be hard to justify for the president.”

[snip]

The following Monday, Bush had his final, definitive meeting with the White House lawyers, ending any possibility of reconsideration. There would be no pardon for Libby. [my emphasis]

Lawyers lawyers lawyers. Baker emphasizes how important the counsel of Nixon’s old lawyer and his apparently half-witted deputy were to Bush’s decision, and he implies, with his description of which lawyers Ed Gillespie referred to, that those lawyers were limited to official White House lawyers.

Nowhere — at least nowhere in this excerpt — does Baker mention that Bush also consulted with his own lawyer, Jim Sharp, as reported by Time 4 years ago.

Meanwhile, Bush was running his own traps. He called Jim Sharp, his personal attorney in the Plame case, who had been present when he was interviewed by Fitzgerald in 2004. Sharp was known in Washington as one of the best lawyers nobody knew.

[snip]

While packing boxes in the upstairs residence, according to his associates, Bush noted that he was again under pressure from Cheney to pardon Libby. He characterized Cheney as a friend and a good Vice President but said his pardon request had little internal support. If the presidential staff were polled, the result would be 100 to 1 against a pardon, Bush joked. Then he turned to Sharp. “What’s the bottom line here? Did this guy lie or not?”

The lawyer, who had followed the case very closely, replied affirmatively.

Yet neither Time then nor Baker now considered the implications of Bush consulting with the lawyer who knew what questions he got asked when Pat Fitzgerald interviewed the President.

Those questions would have included whether — as Libby’s grand jury testimony recorded Cheney as having claimed — the President declassified the information, including Plame’s identity, Cheney ordered Libby to leak to Judy Miller. They also would have included why — as the note above shows — Cheney almost wrote that “the Pres” had ordered Libby to stick his neck in a meat grinder and rebut Joe Wilson, before he cross out the reference to the President and used the passive voice instead. They would have also included questions about Bush’s public comments about rebutting Wilson in meetings. (I laid out these details in this post.)

Peter Baker pretends that Bush had no personal knowledge of the leak or — more importantly — of Fitzgerald’s reasons for suspecting Cheney ordered the leak. He somehow forgets that Bush consulted his own lawyer, along with Fielding and Fielding’s lackey, either to interpret what Libby did or, more likely, what implications pardoning Libby would have for his own legal exposure.

Which is pretty bizarre. While including these details might make Bush look like a self-interested asshole, they are the only details that make sense if — as Baker suggests with the Simpson quote — whatever Cheney did that required Libby’s protection, he did with Bush’s sanction.

Alberto Gonzales and Internet Data Mining

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I was going to leave this speculation well enough alone. But George W Bush decided to interrupt his dog painting to defend Obama’s surveillance dragnet.

Bush also defended the surveillance program, which began during his administration after 9/11, saying the programs guarantee civil liberties are protected.

“I put the program in place to protect the country and one of the certainties is civil liberties were guaranteed,” Bush said.

So here goes.

In his book, Jack Goldsmith describes Alberto Gonzales siding against David Addington in a debate just once, only to have George Bush override the then White House Counsel.

Addington’s hard-line nonaccommodation stance always prevailed when the lawyers met to discuss legal policy issues in Alberto Gonzales’ office. During these meetings, Gonzales himself would sit quietly in his wing chair, occasionally asking questions but mostly listening as the querulous Addington did battle with whomever was seeking to “go soft.” It was Gonzales’ responsibility to determine what to advise the president after the lawyers had kicked the legal policy matters around. But I only knew him to disagree with Addington once, on an issue I cannot discuss, and on that issue the president overruled Gonzales and sided with the Addington position. [my emphasis]

The issue Goldsmith could not discuss could be torture or prisoner transfers or something entirely unknown, but the data mining at the heart of the hospital confrontation is clearly one candidate.

There’s no overt evidence Gonzales tried to do the right thing on the illegal surveillance program. After all, even after Bush agreed to put the program right on March 12, 2004, Gonzales still objected to Goldsmith and Jim Comey’s first advice on the program. After Goldsmith laid out his initial advice on March 15, Gonzales wrote a memo saying,

Your memorandum appears to have been based on a misunderstanding of the President’s expectations regarding the conduct of the Department of Justice. While the President was, and remains, interested in any thoughts the Department of Justice may have on alternative ways to achieve effectively the goals of the activities authorized by the Presidential Authorization of March 11, 2004, the President has addressed definitively for the Executive Branch in the Presidential Authorization the interpretation of the law.

This led Comey to write up his resignation letter on March 16. “[A]lthough I believe this has been one of [DOJ’s] finest hours, we have been unable to right that wrong.” Three days later, Bush modified his March 11 Authorization, directing NSA to stop collecting Internet metadata within a week.

Of course, three months later, the Administration resumed collection of Internet metadata using the FISC PR/TT order. That was within days of Goldsmith’s departure, though he had announced his departure a month earlier and Comey, obviously, stuck around for over a year longer.

So still no evidence the Internet data mining was the issue on which Gonzales tried to stand up to Addington.

But let’s jump ahead to the circumstances of Alberto Gonzales’ resignation in August 2007. At the time, his sudden and confusing resignation was attributed to the multiple scandals embroiling him — chiefly the US Attorney firing scandal, but also Gonzales’ Clapper-like lies about the illegal wiretap program before the Senate a month earlier. But for some reason, Gonzales did not benefit from the kind of sinecure every other former Bush official — even James Comey, who went to Lockheed — enjoyed upon departure, which you would have thought he’d get after lying to protect the President.

Then, a year after Gonzales’ departure, we learned that in the weeks before he resigned, White House Counsel Fred Fielding had narced him out for storing a bunch of Top Secret CYA documents in a briefcase in his closet. Read more →

The Libby Non-Pardon: From the Department of Pre-Spin

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I thought I was done with the myth on the Scooter Libby non-pardon. But dday’s emphasis on the second most eye-popping detail from Time’s story–Libby’s unsuccessful attempt to appeal to Bush personally for a pardon (the most eye-popping being Bush’s consultation with his own defense attorney)–made me want to tell this story again to emphasize the known facts rather than Bush’s self-serving spin of those facts.

The short version, though, is that the White House prevented Libby from speaking to Bush directly about this case, all the while telling a narrative that the question of pardon pertained narrowly to whether Libby lied about his conversation with Russert and not the larger questions implicating both Cheney and Bush. After Libby appealed his case through Fielding indirectly to Bush, Bush consulted with his defense attorney. And the two of them–Bush and his defense attorney–apparently made the final decision not to pardon Libby just two days before Bush left office.

The Three Clouds over the Commutation and Pardon Discussion

Not long before the jury returned a guilty verdict, Patrick Fitzgerald summarized the problem with Libby’s successful perjury and obstruction of justice.

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.

As the trial revealed, Dick Cheney had ordered Scooter Libby to leak something to Judy Miller. Around the same time Cheney gave that order, Cheney made mad scribblings on Joe Wilson’s op-ed, singularly emphasizing the story of Joe Wilson’s wife. After receiving Cheney’s order, Libby leaked Valerie Wilson’s identity to Miller and went on to give Ari Fleischer some of the details–the name "Plame" and her covert status–that remain unexplained in Bob Novak’s article. 

In other words, the primary cloud over the Vice President was the question, "did the Vice President order his top aide to leak Valerie Wilson’s identity?" And since Libby was the only witness to Cheney’s order, so long as he remained willing to continue telling his lies about his role in the leak, Fitzgerald could never remove that cloud. So long as Libby was willing to take the fall for Cheney, we would never know whether Cheney and Libby had maliciously and knowingly outed Valerie.

But that cloud also blocked another cloud, one over the Vice President and the President. Libby had testified to the grand jury that–after hesitating about leaking the information to Judy (which had to be more than the NIE, since he had already leaked the NIE by this point), Cheney reassured him that President Bush had declassified it, meaning it was okay to leak. Libby didn’t entirely trust Cheney on that point–he double checked with David Addington whether Cheney’s reassurances even made sense legally. Read more →

The Bush Fairy Tale on the Libby Pardon

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You need to keep one thing in mind as you read this story about Cheney’s campaign to get Bush to pardon Scooter Libby for his conviction related to the CIA Leak case. (h/t MadDog) Judge Emmet Sullivan has strongly suggested he’s going to rule in favor of CREW in its FOIA of Dick Cheney’s interview with Patrick Fitzgerald. So chances are good that we’ll get to see that interview in the foreseeable future. But Congress withdrew its request and CREW has not made any request to get Bush’s interview.

In other words, the sources for the story know that Cheney’s interview will soon become public, but that Bush’s probably won’t be.

As a result, the Bush partisans can tell a story about Bush being really miffed at Libby’s role in the case, all while claiming that the commutation (which of course was and still is the best way to ensure Libby never talks going forward) had nothing to do with Bush’s own knowledge of the leak.

Time Ignores that Libby Was Protecting Cheney AND Bush

This misleading narrative pervades the entire story. For example, Time suggests that Libby lied to the FBI because his job was on the line, and not because he was protecting Cheney and–at least to some degree–Bush. Time claims Cheney "assured Bush" Libby "wasn’t involved," when the note Cheney wrote prior to that exoneration implicates Bush himself and may reflect Cheney’s recognition that Libby had leaked the CIA trip report.

But Libby had reason to lie: his job was at stake, and his boss’s was on the line too. Bush had declared that anyone involved in leaking Plame’s identity would be fired. Cheney had personally assured Bush early on that his aide wasn’t involved, even persuading the President to exonerate Libby publicly through a spokesman.

And Time reports Bush officials acknowledging that Libby may well have taken the fall–but in spite of evidence of Bush’s personal involvement, portrays that acknowledgment as pertaining only to Cheney, not Bush himself.

As a former Bush senior aide explains, "I’m sure the President and [chief of staff] Josh [Bolten] and Fred had a concern that somewhere, deep in there, there was a cover-up."

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Gonzales Resigned 17 Days After This IG Investigation Began

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I’ll be doing running commentary on today’s DOJ Inspector General’s investigation of how Alberto Gonzales improperly handled Top Secret information. But I didn’t even get through the first page before being struck by the circumstances behind this investigation. Most curiously, Gonzales resigned just days after this investigation began.

The matter was referred to the OIG by Kenneth Wainstein, former Assistant Attorney General for the National Security Division, on August 10, 2007. The White House Counsel’s Office had initially notified the Department of Justice (Department) about the matter, and Wainstein, after consultation with other senior Department officials, referred the matter to the OIG for investigation.

That is, at a time when Alberto Gonzales was weighing down the Bush Administration, Fred Fielding informed Ken Wainstein that Alberto Gonzales was running around town with a briefcase full of TS/SCI documents. Fielding did so just 20 days after the Administration used Pixie Dust to give Cheney carte blanche to make up his own rules about how to treat classified information. And, more interesting still, it happened just 17 days before a weepy Gonzales resigned on August 27.

Gosh. You’d almost think the Administration, after Bush asked Gonzales specially to take notes of a meeting at which members of Congress collaborated with the Administration in breaking the law, then used those notes against Gonzales, to push him out of the Administration.

And if you’re wondering, Ken Wainstein has since been named Bush’s Homeland Security Advisor. 

Update: typo fixed per bobschacht.

If the Questions Are So “Novel” Then How Can You Argue the Privilege Exists?!?!?

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Someone really ought to call Fred Fielding on his bullshit. Today, perhaps because he reads Murray Waas (I promise, I will return to that post), Fred’s offering further negotiations in the matter of Harriet and Josh and Karl and a stack of documents. In his latest letter to Conyers, Fred says,

[A stay on Bates’ order pending appeal] will provide appellate consideration of the novel questions at stake in this matter [my emphasis]

Fred. I’m not a lawyer, so I could be wrong here. But if even you are admitting that these are "novel" questions, aren’t you, in fact, agreeing with what both John Bates and Linda Sanchez have said all along, that you’re just making this shit up!!! As Bates said,

Indeed, the aspect of this lawsuit that is unprecedented is the notion that Ms. Miers is absolutely immune from compelled congressional process. The Supreme Court has reserved absolute immunity for very narrow circumstances, involving the President’s personal exposure to suits for money damages based on his official conduct or concerning matters of national security or foreign affairs. The Executive’s current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law.

This absolute immunity shit doesn’t exist. Linda Sanchez knows it, John Bates knows it, and, apparently, you know it. So drop the pretense and send us Turdblossom to testify already, okay? 

David Iglesias Doesn’t Think Those Were Karl Rove’s “Official Duties,” Either

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iglesiasbook.jpgYesterday, I posted a YouTube from Governor Siegelman responding to my question about whether he thought Rove’s involvement in Siegelman’s prosecution could possibly be part of Rove’s "official duties," as Fred Fielding has claimed.

I asked David Iglesias the same question–whether he thought the activities that the House Judiciary Committee subpoenaed Rove about in May really pertained to Rove’s "official duties." Iglesias doesn’t seem to think those are Rove’s "official duties" either. He points out how dangerous Fred Fielding’s claim is:

Claiming that the performance of "official duties" includes possible unlawful or criminal activity sets a dangerous new precedent, namely that as long as an advisor works in the West Wing of the White House, they have carte blanche to engage in any possible activity without being subject to the rule of law.

Iglesias is right. My gripe with the "official duties" claim is that, in the Siegelman case (which was explicitly named in Rove’s subpoena), Rove’s actions might be legal, so long as they weren’t "official duties" (because then they’d become a massive violation of the Hatch Act). But in Iglesias’ case, the actions are, by themselves, probably obstruction of justice (not to mention another massive violation of the Hatch Act). The actions are, by themselves, probably illegal.

Yet, strictly by deeming those activities part of Rove’s "official duties"–with no sanction or review from DOJ–Fielding claims Bush can grant Rove Absolute Immunity from testifying before Congress.

That is a dangerous precedent indeed.

How Could It POSSIBLY Be Part of Karl Rove’s “Official Duties” to Hijack DOJ?

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The biggest two regrets I have about Netroots Nation is that I arrived too late to meet either Governor Siegelman or Richard Clarke.

But I did manage to get the folks at Brave New Films to pose the question I’ve been asking for over a week to Governor Siegelman: How can Fred Fielding claim that the actions about which the House Judiciary Committee subpoenaed Karl Rove to testify were related to his "official duties"?

Governor Siegelman is just as mystified by the question as I am:

How could it possibly be part of Karl Rove’s offical duties to hijack the Department of Justice and use it as a political tool to prosecute those people whom they don’t like or people whom they think are political opponents?

Karl Rove was involved in the allocation of resoures to the Department of Justice and there is a question, certainly a question is raised as to his conduct and the people that he put into place over at the Department of Justice and whether they were programmed to abuse power for political reasons.

Update: Title fixed per skdadl. 

DOJ Doesn’t Want to Say Whether It Agrees that Karl’s “Official Duties” Include Witch Hunts

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As you all know, I started calling DOJ last Friday, asking them whether, as Fred Fielding suggested, they had advised the White House that Karl Rove’s duties include witch hunts of Democrats.

We have been further advised that because Mr. Rove was an immediate presidential adviser and because the Committee seeks to question him regarding matters that arose during his tenure and relate to his official duties in that capacity, Mr. Rove is not required to appear in response to the Committee’s subpoena. Accordingly, the President has directed him not to do so.

Apparently, DOJ Deputy Public Affairs Director Peter Carr (whose phone number is 202-616-2777) received the request. Yet, surprise surprise, I have not had a response to my question.

From which I am assuming that Mr. Carr refuses to say whether DOJ actually told the White House, this year, with regards to HJC’s May subpoena of Karl Rove, that the subpoena pertained to his "official duties." I find that mighty curious, given the fact that the White House Counsel, Fred Fielding, strongly implied that DOJ had given the White House that advice. Is Fred Fielding deliberately mis-representing to Congress the advice he has gotten from DOJ? Because that sure sounds like either an ethical or legal problem, to have the White House Counsel making such representations if they are not in fact true. Especially since Fielding suggests that DOJ really reviewed this and decided that making resource allocations in PIN, channeling oppo research on Democrats to DOJ, and talking openly about having Patrick Fitzgerald fired to protect RNC donor Bob Kjellander from investigation were part of Rove’s "official duties."

Well, just to be sure, I called Fielding’s office. Yup, not holding my breath there, either, but you’ll be the first to know if I do get a response. But it is sure beginning to look like Fred Fielding decided, on his own, that Rove’s official duties included witch hunts of Democrats.

Or maybe he decided that because Bush told him to?

DOJ Apparently Doesn’t Know Whether It Told Fielding that Rove’s “Official Duties” Include Witch Hunts

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That’s not exactly correct. Apparently they’re still thinking about whether or not they told Fred Fielding that Rove’s "official duties" include obstruction of justice and channeling oppo research from Alabama Republicans to the DOJ. I called DOJ at the following times today:

8:30

12:30

3:00

4:45

Each time asking them whether Fred Fielding’s claim that,

We have been further advised that because Mr. Rove was an immediate presidential adviser and because the Committee seeks to question him regarding matters that arose during his tenure and relate to his official duties in that capacity, Mr. Rove is not required to appear in response to the Committee’s subpoena. Accordingly, the President has directed him not to do so.

…Means that DOJ told the White House that the subpoena requiring Rove to testify about his actions in the Siegelman prosecution "relate[d] to his official duties" in his capacity as Presidential Advisor.

Did DOJ, I asked, tell the White House they believed Karl Rove’s alleged actions in the Siegelman prosecution were part of his "official duties" as Senior Advisor to the President? Because that is the implication of Fielding’s representation to the House Judiciary Committee. If the matters the Committee seeks to question Rove about–the Siegelman prosecution, primarily–fall within his "official duties," then–at least according to an opinion from Steven Bradbury never validated by any court–Rove may choose not to appear in response to the subpoena. And Fielding strongly implies that DOJ has advised the White House as much–though to support that claim, he only provides documentation from a different subpoena seeking testimony about the hiring and firing of US Attorneys. I wanted to know–was Fred Fielding making that representation to Congress based on an eleven-month old memo dealing with a different subpoena entirely, or was the White House really advised–as Fielding asserts–that the matters the Committee subpoenaed Rove to testify about this time fall under his "official duties"?

Easy enough to figure that out, I thought! I’ll call DOJ and see if they have any record of advising the White House that Karl Rove’s alleged actions in the Siegelman prosecution pertained to his "official duties" while he was at the White House. It’s an easy, yes or no question. I’m sure they’ll be able to answer that question right away, I thought.

So I called. And I called. And I called. And I called.

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