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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 →

A Response to Dean: The Failure, So Far, Has Been Congress’

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John Dean thinks Patrick Fitzgerald may have gone soft on the White House.

If McClellan’s testimony suggests that Special Counsel Patrick Fitzgerald, for any reason, gave Karl Rove and Dick Cheney a pass when, in fact, there was a conspiracy – which is still ongoing – to obstruct justice, then these hearings could trigger the reopening of the case. But this is a pretty large “If.”

[snip]

As experienced a prosecutor as Fitzgerald is, he was playing in a very different league when investigating the Bush White House. These folks make Nixon’s White House look like Little Leaguers – and based on what is known about the Plame investigation, I have long suspected that Fitzgerald was playing out of his league. (See, for example, here and here.)

I would counter Dean and suggest it was not Fitzgerald, but Congress, which dropped the ball.

Dean suggests that we don’t know what Fitzgerald found.

Yet since no one knows what Fitzgerald learned, except those who cannot speak of what they know, it is not possible to determine whether he might have been outfoxed by the White House.

Um, not quite. While it is true we don’t know the contents of Rove’s grand jury appearances nor those of many other key players, we do know quite a bit beyond the details surrounding Libby’s narrow perjury charge. With the caveat that some of the following can only be supported with circumstantial evidence, here’s what we do know:

  • Dick Cheney declassified Valerie Wilson’s identity (either with Bush’s implicit or explicit approval) and told Libby to leak it to Judy Miller. He may have instructed Libby to leak details about her name and status to Novak during his July 9 conversation as well. But since he declassified Valerie’s identity, the legal status of that leak is–at best–unclear. After that leak, those in the White House who knew about it operated as if it was a legal leak of non-classified information.
  • The stories of Rove, Armitage, Novak, and Libby have significant discrepancies, meaning (in spite of what the Administration’s backers claim) we don’t yet have an adequate explanation for the leak to Novak. Probably, some of Rove’s testimony was perjurious, but there is no credible witness to that fact (since Armitage was himself either lying or a terrible witness), so it would be difficult to charge. Read more →

Scottie’s Briefing

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I’m going to continue my discussion of Scottie McC’s chronology. But first I want to look closely at how Scottie McC describes his September 29 press briefing, and what the briefing actually includes.

Here’s what Scottie McC claims to have cleared with Bush in the early morning September 29 conversation (in addition to the "Karl didn’t do it" claptrap described in this post).

I then turned the conversation to the approach I was planning to take with the White House press corps later in the morning at the gaggle and in the afternoon briefing.

[snip]

"I plan on saying you believe the leaking of classified information is a serious matter, and that it should be looked into and pursued to the fullest possible extent," I said to the president. "And that the Department of Justice is the appropriate agency to look into it. And I don’t plan on going too far beyond that."

"Yeah, I think that’s right," the president replied. "I do believe it’s a serious matter. And I hope they find who did it."

"And Andy, I am still good to say that nothing has been brought to our attention to suggest White House involvement, beyond what we have read in the papers, right?" I asked.

"I do not know of anything," Andy responded. "And last I heard from Al, he did not either," he added, referring to Al Gonzales, the White House counsel and longtime Bush loyalist from Texas.

And here’s what he cleared with him between his gaggle and his briefing.

Card and Gonzales had already assured me they knew of no White House involvement in the disclosure of Plame’s identity.

[snip]

I’d visited with [the President] before the briefing to make sure he was fine with my saying in response to questions that he would fire anyone involved in the leaking of classified information, specifically the identity of Valerie Plame.

And here’s one last detail of what he says he said–though he doesn’t claim he got Bush to approve it first.

I reiterated that the president expected everyone in his administration to adhere to the highest standard of conduct, and that no one would have been authorized to leak the identity of Wilson’s wife.

And here’s the briefing in question for your viewing pleasure.

Read more →

Condi’s Sunday Shows

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I’m going to continue my series on Scottie McC’s chronology, but I wanted to talk about two more details surrounding the September 27 weekend first. This post is about what Condi knew and when she knew it.

I pointed out last week that it appears that Condi testified to having some kind of conversation with Bush about Rove’s involvement in the Plame leak.

Waxman tells us what is redacted in Scottie’s interview report.

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.

And he implies that that’s what was redacted from the other interviews, as well.

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.

From which we might conclude that those redacted passages in the Rove, Libby, Cathie Martin, and Condi interview reports are, at the very least, about conversations with Bush or Cheney, and possibly, discussions specifically about the exoneration of Rove and Libby.

We know Rove could have testified about this–Scottie McC’s book tells us that Rove told Bush directly that he was "innocent." Similarly, we know that Libby had such conversations with Cheney–in fact, passages describing those conversations appear, totally unredacted, in the grand jury testimony.

I’m not surprised that Cathie Martin had a conversation with (probably) Cheney about the leak. After all, the one email that had been destroyed and was subsequently turned over to prosecutors shows Martin and Jenny Mayfield closely watching for Scottie’s exoneration of Libby. So we know that Mayfield and Martin were following that exoneration.

But Condi? We know almost nothing about Condi’s testimony.

Now I’m just guessing from the context that that testimony might pertain to a conversation between Rice and Bush about which of Bush’s top aides had claimed to be innocent of the leak. Wouldn’t it be interesting if Bush went out of his way to tell Condi that Rove didn’t leak Plame’s name?

Which is why I find it all the more interesting that Scottie McC was asked–in his February 6, 2004 grand jury appearance–whether he had told Condi to exonerate Rove on the Sunday shows on September 28, 2003.

Read more →

Scottie McC’s Chronology: September 29

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In this post, I showed that Scottie McC should have suspected that Rove was lying at least by September 27, when it would have become clear that Rove had already been less than forthcoming about his conversations with Bob Novak and when it should have become clear that, after finding out the identities of the 2 SAOs alleged to have leaked Valerie Wilson’s identity to 6 journalists, Mike Allen immediately called Rove for comment.

Which brings us to September 29, the day when Bush told Scottie McC that Rove "didn’t do it."

Before I start, let me point out that Scottie McC presents several events that happened on September 29, most of which he doesn’t place in chronology within that day. These are (in the order I’m guessing they occurred):

"That morning the Washington Post was reporting that the Justice Department had opened a criminal investigation into the disclosure of Plame’s identity."

[Between 7:00 and 7:30 AM] Bush told Scottie that "Karl didn’t do it … He told me he didn’t do it."

"Andy [Card] replied that he had not heard anything new [about the investigation], and as far as he knew we had yet to hear from the Justice Department."

[simultaneous with the Bush-Card-McClellan meeting, but necessarily viewed afterwards] "Joe Wilson, appearing on ABC’s Good Morning America, was backing away from his previous assertion that Rove had been responsible for leaking his wife’s identity. However, Wilson also asserted that he believed Rove ‘at a minimum condoned the leak.’"

"I checked with Rove that day to confirm that he’d neither leaked nor condoned leaking Plame’s identity. He assured me that was correct."

Two things about this chronology. First, by putting the GMA Wilson comments and the Rove question before his account of the Bush-Card-McClellan meeting as he does in his book, Scottie McC suggests he had one more reason to believe Bush when he told him Rove hadn’t leaked Plame’s identity–that even Joe Wilson was backing off the allegation. But since GMA airs at 7:00, precisely when Scottie McC says he was meeting with Bush, it’s unlikely he saw Wilson’s comments until after both the Bush-Card-McClellan meeting and the senior staff meeting (which took place immediately afterwards). We know, however, that Scottie McC saw the GMA comments before his 12:18 press briefing, because he mentions Wilson in the briefing. That’s just one small detail that might make Scottie McC’s acceptance of Bush’s statement more credible.

Also, note how Scottie McC states that the WaPo had reported "that morning" that DOJ had opened a criminal investigation. As I pointed out in my last post, that’s just meaningless. Read more →

Scottie McC’s Chronology: September 27

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I said yesterday that Scottie McC was still protecting Bush–either deliberately or out of blind faith. One of the areas where that’s apparent is in his discussion of efforts to have both Rove and Libby exonerated in fall 2003. Scottie McC presents some significant new details about discussions of the leak within the White House just as DOJ started the CIA leak investigation. But he presents a chronology that downplays the degree to which those White House discussions were a reaction to public news that the DOJ had already started a probe.

Take a look at this chronology–showing the known events in the middle column, and Scottie McC’s details in the right-hand column.

Date

Events

Scottie’s Events

September 16

CIA requests investigation

Scottie first asks Rove about leak:
“You weren’t one of Novak’s sources, right?”
“Right”

Russell Mokhiber asks about Rove

September 26

DOJ officially launches investigation

  
 

NBC leaks news of investigation

  

September 27

  

Scottie asks Rove about leak

September 28

1X2X6 Dana Priest and Mike Allen article

  

September 29

  

Bush tells Scottie Rove didn’t leak (7 AM)
   

Scottie asks Rove whether he condoned leak
   

“That morning” the WaPo reports that DOJ opened an investigation
 

Scottie emphasizes the White House has received no official warning and denies Rove’s involvement, mentioning Bush

  
 

(Evening) Ashcroft informs Gonzales who informs Andy Card to retain materials

  

What’s most important about Scottie McC’s chronology is that he never admits that the White House learned and responded to leaked news of the investigation that appeared on September 26 and instead suggested they only responded to news reports and–ultimately–the belated official notice DOJ gave the White House on September 29. Here’s the description Scottie McC gives of that timing:

On September 16, the CIA informed the Justice Department about its completed investigation into the disclosure of Valerie Plame’s name and undercover status and requested that the FBI "initiate an investigation of this matter." Justice advised the CIA on September 29, 2003, that its counterespionage section supported the request for an investigation. The clear implicationwas that there was good reason to believe a crime had been committed in the leaking of Plame’s name. The White House would be informed about the Justice Department’s decision later that evening.

By starting his chronology this way, Scottie McC hides the fact that NBC first reported the DOJ investigation on Friday evening, September 26, three days before the White House officially learned of the investigation.

September 27

That’s particularly important given one of the new details Scottie McC’s narrative reveals–that both he and Claire Buchan learned from Rove on September 27 that Rove had spoken with Novak during leak week. Scottie McC found out after Mike Allen emailed Rove for comment on the famous 1X2X6 story [now behind the firewall].

Rove got in touch with my trusted deputy Claire Buchan, letting her know he’d received an email inquiry from Mike for the story.

[snip]

Claire spoke with Rove before I returned to the White House in the staff vans. I arrived back at my office sometime after 1:00 P.M., and a short time later got the rundown from her.

Read more →

“Trivial Policy Ideas”

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I’m going to launch into some much more detailed analysis of Scottie McC’s book in the next few days. But before I did that, I wanted to establish how deeply Scottie McC is in denial about George Bush–both about his good intentions as a President and his honesty. As I go through the Plame-related and Iraq intelligence stuff, I’ll show how Scottie McC is still fundamentally protecting the President, perhaps as much to prevent serious cognitive dissonance on Scottie’s own part as to protect Bush.

But for now, I just wanted to point out how Scottie McC tends to interpret anything Bush does in the best positive light, even while condemning the same behavior from others.

In Scottie McC’s discussion of the presidential transition, he compares Clinton and Bush in some detail, noting that both got sucked into the "permanent campaign" when in DC. Scottie McC even cedes that Bush embraced the permanent campaign as much as Clinton (which is, after all the point of the book).

There would be no more permanent campaign, or at least its excesses would be wiped away for good. But the reality proved to be something quite different. Instead, the Bush team imitated some of the worst qualities of the Clinton White House and even took them to new depths.

Yet Scottie McC wants to pretend that Bush’s permanent campaign was all in service of a grand agenda, unlike (he suggests) Clinton.

Bush did not emulate Clinton on the policy front. Just the opposite–the mantra of the new administration was "anything but Clinton" when it came to policies. The Bush administration prided itself on focusing on big ideas, not playing small ball with worthy but essentially trivial policy ideas for a White House, like introducing school uniforms or going after deadbeat dads.

Curious that this son of a single mother would insinuate that an overdue federal effort to make sure that families parented by single mothers don’t also have to survive on single salaries was "trivial." The effort to ensure that women could collect the child support due them was fundamentally about families and personal responsibility.

Read more →

Did Condi Speak with Bush about Rove’s So-Called Innocence? Or about the NIE?

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I wanted to add one detail to my earlier post about Waxman asking for more materials from Mukasey. They imply that Condi had a conversation with Bush or Cheney about Rove and/or Libby’s so-called innocence.

Waxman’s letter asks for the following:

I am writing now to renew the Committee’s request for the interview reports with President Bush and Vice President Cheney and to request unredacted versions of the interviews with Karl Rove, Scooter Libby, Condoleezza Rice, Scott McClellan, and Cathie Martin. I also request that the Department provide all other responsive documents that were approved for release to the Committee by Mr. Fitzgerald.

[snip]

I therefore urge you to follow Justice Department precedents and provide the records of the FBI interviews with President Bush and Vice President Cheney to the Committee by June 10. I also ask that you provide to the Committee, at the same time, the unredacted interviews with Karl Rove, Scooter Libby, Condoleezza Rice, Scott McClellan, and Cathie Martin, as well as the other responsive records requested by the Committee.

In other words, his letter written specifically in response to Scottie McC’s revelations asks for unredacted copies of Scottie’s interview, but also Rove’s, Libby’s, Condi’s, and Cathie Martin’s interviews. Mind you, Waxman has seen redacted copies of these, but Scottie’s revelations lead him to demand unredacted interview reports.

Waxman tells us what is redacted in Scottie’s interview report.

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.

And he implies that that’s what was redacted from the other interviews, as well.

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.

From which we might conclude that those redacted passages in the Rove, Libby, Cathie Martin, and Condi interview reports are, at the very least, about conversations with Bush or Cheney, and possibly, discussions specifically about the exoneration of Rove and Libby.

We know Rove could have testified about this–Scottie McC’s book tells us that Rove told Bush directly that he was "innocent." Similarly, we know that Libby had such conversations with Cheney–in fact, passages describing those conversations appear, totally unredacted, in the grand jury testimony.

Read more →

On the Serendipity of Mis-Readings

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Rut roh. Some White House reporter didn’t read my post closely enough:

Today On Holden’s Obsession With The Gaggle

By Holden Caulfield

Put Impeachment Back On The Table

Q Dana, I wanted to ask you, I know you don’t want to go line-by-line with the whole book thing, the Scott McClellan book — but I’m thinking you may want to address this because there’s something out there. Not having the benefit of having the book in front of me, there’s an allegation apparently made by Scott in the book that a reporter shouted a question to the President, on a trip that Scott had been with him on, just as they were getting on Air Force One, and it was Valerie Plame-related. Basically, it prompted Scott to ask the President directly, "Were you the one who authorized the leaking of Valerie Plame’s name?" And the President apparently told Scott, "Yes, I was."

MS. PERINO: I don’t know. Obviously I wasn’t there and — obviously I don’t know the context. I think the — it’s hard for me to say. I don’t have the book in front of me either and I don’t know.

But what I do know is that what we have said before, which is defending the President’s decision to go to war is something that we have done repeatedly, and the suggestion that the President had sent Joe Wilson to Africa was false. And so I don’t know if that was what it was in regards to or not, so I’m — I don’t know.

Q But I mean, if that’s an allegation that’s out there, that the President is supposedly responsible for the leaking of Valerie Plame’s name, is that something you want to —

MS. PERINO: I don’t think that’s what Scott says in the book and I think that everyone should go back and look at it a little bit more carefully. I don’t think that’s what he says.

Q Can you comment more generally about whether the President has ever authorized the leaking of classified information?

MS. PERINO: I’m not aware of that, no. And I also know that President Bush would never ask anyone to knowingly go out and lie. But do we defend the President’s record vigorously? Read more →