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Cheney’s Lawyer Already Leaked the Content of Cheney’s “Privileged” Interview

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You know how Obama’s DOJ claims that we can’t see Cheney’s interview with Patrick Fitzgerald because it’s privileged? Well, Dick Cheney’s own lawyer already leaked the so-called privileged content three years ago.

It appears that Dick Cheney’s lawyer, Terry O’Donnell, attended the interview. When Ted Wells asked David Addington at the Libby trial when he realized he was going to be a witness in the case, Addington explained that he was not permitted to attend Cheney’s interview, but Cheney’s lawyer was.

The point at which I knew I was likely to be a witness in the case was when the government went to interview the Vice President and indicated they would prefer I didn’t come and that only his private attorney come.

I’m interested in that because we know that Terry O’Donnell spread a cover story on the NIE leak–precisely the content DOJ now claims is privileged–to Michael Isikoff.

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]

[snip]

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]

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The Contents of the Fitzgerald-Cheney Interview, Annotated Edition

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Since there is still some confusion over the material from Dick Cheney’s interview with Patrick Fitzgerald that, DOJ says, cannot be made public, I decided to provide a more detailed description of what was in the interview with handy links for any media outlets that are too busy selling access to lobbyists to do their own work. What follows are the page-specific references in the DOJ FOIA response to material that appears in the FBI report of the interview. That document is 28 pages long, total, so this is a pretty good outline of what’s in the interview. I treat information that appears on the same page together, so a couple of these descriptions cover a number of separate issues raised in the filing.

Vice President’s discussion of the substance of a conversation he had with the Director of the CIA concerning the decision to send Ambassador Wilson on a fact-finding mission to Niger in 2002. (Page 3, lines 15-17, 21-28); The name of a covert CIA employee (Page 3)

As you recall, Libby first learned of Valerie Plame’s covert identity from a conversation with Dick Cheney some time during the week of June 9, 2003. He recorded his conversation with Cheney in a note which was a central focus of Libby’s grand jury testimony. When asked, Libby said Cheney may have learned of Valerie’s status from Tenet. And, when Fitzgerald was questioning Libby about Cheney’s notations on Joe Wilson’s op-ed, Libby explained that Cheney had asked Tenet earlier in June or July about the CIA sending ambassadors to gather information.

Q. When the Vice President asked you the question, "have they done this type of thing before," question to that effect, Vice — did the Vice President ever ask you has the Agency ever done this sort of thing before where an ambassador was sent out?

A. I think he may have at some point.

Q. And what did you do in response to that question, if anything?

A. I don’t know if I did anything particularly about it. I think he may have taken it up with, with Tenet rather than asking me.

[snip]

Q. What did he talk to the official that you do know he talked about?

A. About, you know, how this came about. I have a sense that he had talked to Tenet or somebody about, about that.

Q. And what time frame was that?

A. Summer, June, July, something like that.

In other words, this conversation appears to be the conversation Cheney had during the week of June 9 in which he learned of Plame’s identity. That makes the reference to "a covert CIA employee’s identity" all the more interesting. While that might be a reference to Valerie’s colleague who first suggested sending Joe, it might well be a reference to Valerie herself. While we know the CIA still wants to hide details of Plame’s career, it would be the height of absurdity if CIA tried to prevent us from seeing Fitzgerald ask Cheney about Plame.

In any case, DOJ is probably attempting to prevent us from learning of Cheney’s account of how he learned of Plame’s identity before he passed it on to Scooter Libby.

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Cheney Interview: Pay2PlayPo Losing Its Ability to Report, Too

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picture-113.pngThe WaPay2PlayPo’s Jeffrey Smith is usually a much better reporter than this. In his report on DOJ’s latest attempt to keep the materials from Cheney’s Fitzgerald interview secret–published right under a link to all the evidence released in the trial–Smith "reports,"

A document filed in federal court this week by the Justice Department offers new evidence that former vice president Richard B. Cheney helped steer the Bush administration’s public response to the disclosure of Valerie Plame Wilson’s employment by the CIA and that he was at the center of many related administration deliberations.

Which, if you take "new evidence" to mean "a new list summarizing many of the events described in evidence introduced two years ago at the Libby trial," would be factually correct.

But this isn’t.

Barron also listed as exempt from disclosure Cheney’s account of his requests for information from the CIA about the purported purchase; Cheney’s discussions with top officials about the controversy over Bush’s mention of the uranium allegations in his 2003 State of the Union speech; and Cheney’s discussions with deputy I. Lewis "Scooter" Libby, press spokesman Ari Fleischer, and Chief of Staff Andrew H. Card Jr. "regarding the appropriate response to media inquiries about the source of the disclosure" of Valerie Plame Wilson’s identity. [my emphasis]

Smith gets that last bit from this language in the filing.

Vice President’s recollection of discussions with Lewis Libby, the White House Communications Director, and the White House Chief of Staff regarding the appropriate response to media inquiries about the source of the disclosure of Valerie Plame Wilson’s identity as a CIA employee.

gx53201-libby-sonnet.thumbnail.jpgNow, the language used there–"the source of the disclosure of Valerie Plame Wilson’s identity"–ought to be a pretty big clue to Smith that this conversation happened after Plame’s identity was actually made public. That is, after July 14, 2003, which happened to be Ari Fleischer’s last day, meaning it’s pretty clear that Ari Fleischer (who was White House Spokesperson, not Communications Director) isn’t the guy referenced here. But you don’t really need clues like that to figure out that Smith is wrong here. Had Smith only clicked that link above his article and actually looked at the evidence released at trial, he would have seen the famous "meat grinder note," a note Cheney used as a talking point document for conversations with Andy Card (correctly identified by Smith as Chief of Staff) and Dan Bartlett (in his role as "White House Communications Director," the position listed in the filing) in early October 2003 to get them to force Scottie McClellan to exonerate Scooter Libby publicly. 

Has to happen today. 

Call out to key press saying same thing about Scooter as Karl.

Not going to protect one staffer and sacrifice the guy the Pres that was asked to stick his neck in the meat grinder because of the incompetence of others.

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The Contents of the Fitzgerald-Cheney Interview

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Mary pointed me to DOJ’s latest attempt to prevent CREW from accessing the materials relating to Cheney’s interview with Fitzgerald and the FBI. I’ll get into what a load of crap the DOJ argument is later. But first, I want to lay out what the FOIA declarations say about the Cheney interview itself.

First, the date. Rather than early June, as previously assumed, the CIA declaration included with this document reveals the documents were dated May 8, 2004–a month earlier in the investigation that we had  known (and therefore a month and a half earlier than Bush’s interview).

Otherwise, the declarations reveal the following contents of the interview:

  • Vice President’s discussion of the substance of a conversation he had with the Director of the CIA concerning the decision to send Ambassador Wilson on a fact-finding mission to Niger in 2002.
  • Vice President’s discussion of his requests for information from the CIA relating to reported efforts by Iraqi officials to purchase uranium from Niger.
  • Vice President’s recollection of the substance of his discussions with the National Security Advisor while she was on a trip to Africa.
  • Vice President’s description of government deliberations, including discussions between the Vice President and the Deputy National Security Advisor, in preparation of a statement by the Director of CIA regarding the accuracy of a statement in the President’s 2003 State of the Union Address.
  • Vice President’s recollection of discussions with Lewis Libby, the White House Communications Director, and the White House Chief of Staff regarding the appropriate response to media inquiries about the source of the disclosure of Valerie Plame Wilson’s identity as a CIA employee.
  • Vice President’s description of his role in resolving disputes about whether to declassify certain information.
  • Vice President’s description of government deliberations involving senior officials regarding whether to declassify portions of the October 2002 National Intelligence Estimate.
  • Description of a confidential conversation between the Vice President and the President, and description of an apparent communication between the Vice President and the President. 
  • Names of non-governmental third-parties and details of their extraneous interactions with the Vice President.
  • Name of a CIA briefer.
  • Names of FBI agents.
  • Names of foreign government and liaison services.
  • The name of a covert CIA employee.
  • The methods CIA uses to assess and evaluate intelligence and inform policy makers.

Now, as I’ll get into when I discuss what a load of crap this is, almost every single bit of this was already revealed at trial. Read more →

Who Accessed the Rove Email Search on July 26, 2005?

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As I explained in my last post, one of the documents turned over to CREW shows evidence of email searches done in 2004, presumably as part of the Plame investigation (and kudos, again, to WO for noticing these searches). Pages 44 through 46 show a search conducted on November 9, 2004 for Cooper and Rove and NSC emails. This search is almost certainly in response to a Fitzgerald request after Rove turned over his email to Hadley before he testified on October 15, 2004. Presumably, after Fitz got an email that hadn’t been turned over as evidence, he asked the White House to redo the search, which they got around to doing after making sure Bush won the election.

Interestingly, it appears there were almost no results for NSC files on July 14, 2003, the day Novak’s column came out.

There are two more interesting details about this search.

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On the bottom of page 45, in the last column, it shows three files were last opened on different dates than others.

Two files named WHO_2003_0309_26272829.pst and WHO_2003_930+923.pst were both last opened on July 28, 2004. This was a search for email mentioning Matt Cooper, apparently.

And a file named Rove Final.pst was opened on July 26, 2005.

Now, as to the first two searches last opened in July 2004, they may have been searches done in response to Judge Hogan’s decision that Matt Cooper would have to testify. Or, just as likely, they might be searches in response to Colin Powell’s testimony on July 16; recall the story of a Principals meeting in late September at which the leak was discussed. But both of those stories would be weird: if the files were in preparation for Cooper’s testimony, then why search on September 23 and 30, specifically–particularly since both of those dates come after Cooper’s welfare article (for which Rove was a source) was published earlier in September? Alternately, if the search was a response to Powell’s testimony, then why focus on Cooper in particular? And were those files just renamed later that year when the more expansive searches were done?

Then there’s the other file: a search for Rove’s emails completed in November 2004, but last opened on July 26, 2005. That says the search was done, but someone went back to see what the search was. The file was opened a few weeks after Matt Cooper testified about the leak from Rove. It was also just days before Rove aides Susan Ralston and Israel Hernandez testified and was in the same month that Robert Luskin offered to have Rove testify again (for what would be the fourth time). Read more →

Why Was the White House Searching for Plame-Wilson-Novak Emails Dated May 1, 2003?

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William Ockham made a really important discovery. One of the files turned over to CREW has search files from September and November 2004 relating to the Plame investigation. Look at pages 44-46 for Rove and Cooper searches and page 49 for Plame Wilson Novak searches.

Of particular interest, here are the days on which they were apparently searching for Plame Wilson Novak emails dated:

May 1, 2003
May 9, 2003
May 16, 2003
May 27, 2003
June 2, 2003
June 23, 2003
June 30, 2003
July 7, 2003
July 12, 2003
July 24, 2003
August 8, 2003
August 13, 2003
August 27, 2003
August 29, 2003 
October 9, 2003

Now, I’m not entirely sure what these dates mean, but my guess is they were a search run overnight on September 23, 2004 for appearances of Plame, Wilson, or Novak on particular dates, and the search results came back the next morning–September 24, 2004. That timing makes sense–it was when Patrick Fitzgerald had strong suspicions that Novak had talked to people in the White House about Plame. And, it was certainly after Fitz developed suspicions he wasn’t getting all the email (he asked Libby about the dearth of email in his name in March 2004). 

So that timing makes sense. As do most of the dates searched. On June 2, OVP was panicking about a Walter Pincus article. The June 23 date is when Novak probably set up his meeting with Armitage and its the day Libby first leaked Plame’s name to Judy. July 7, 2003 is the day when OVP decided to more aggressively leak Plame’s name, and also a day when Novak was purportedly reporting on his Frances Fragos Townsend story, almost certainly with OVP. July 12 is when the White House started leaking Plame’s name in anticipation of the Novak article, which was on the wire. The later days are all plausible dates of conversation with Novak. (Though note, they don’t include July 8 or 9, 2003, when we know Novak spoke with Rove and Libby respectively about the Wilsons.

But May 1, 2003?

Before the Nicholas Kristof column came out? The day before Wilson and Kristof first spoke?

Judge Sullivan: Steven Bradbury Not Qualified to Withhold Cheney’s Plame Materials

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Though we may need new rules about linking to the WaPo after they canned Dan Froomkin, not only is this story not an AP story (what with their expansive claims of fair use), but it has a bunch of more interesting details. So here’s the story about Judge Emmet Sullivan, demanding the government allow him to review the Dick Cheney FBI interview materials they’re trying to withhold from FOIA before he’ll allow them to withhold the materials.

U.S. District Judge Emmet G. Sullivan expressed surprise during a hearing here that the Justice Department, in asserting that Cheney’s voluntary statements to U.S. Attorney Patrick J. Fitzgerald were exempt from disclosure, relied on legal claims put forward last October by a Bush administration political appointee, Stephen Bradbury. The department asserted then that the disclosure would make presidents and vice presidents reluctant to cooperate voluntarily with future criminal investigations.

But career civil division lawyer Jeffrey M. Smith, responding to Sullivan’s questions, said Bradbury’s arguments against the disclosure were supported by the department’s current leadership. He told the judge that if Cheney’s remarks were published, then a future vice president asked to provide candid information during a criminal probe might refuse to do so out of concern "that it’s going to get on ‘The Daily Show’ " or somehow be used as a political weapon.

Sullivan said Bradbury, who was the acting head of the Office of Legal Counsel, was not obviously qualified to make such claims and that they were in any event unsubstantiated. Sullivan said the department needed new evidence, if it hoped to prevail, and said the administration should supply him with a copy of Cheney’s statements so he could directly assess whether the claims are credible.

No word on whether Sullivan believes Bradbury is unqualified because this is not the purview of OLC, or whether he has just read Bradbury’s crappy ass OLC opinions and made the same conclusion the rest of us have: his legal judgment ain’t worth much.

Sullivan appears to be predisposed to accept CREW’s–and frankly, Fitz’s–argument that, since Cheney didn’t have to appear before a grand jury, he (and the government) can’t now claim his interview materials can’t be released because of grand jury secrecy laws. 

Also note, there are three items responsive to the CREW subpoena, all in some way pertaining to the FBI interview. That means in addition to the interview report, we’ll get notes. Read more →

Fitzgerald Subpoenas and Server Crashes

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CREW reports something that I demonstrated clearly some time ago: materials subpoenaed by Patrick Fitzgerald in his CIA Leak Investigation were lost in the White House’s seemingly intractable problems with email. (h/t Laura Rozen) But CREW’s got new documents proving the case, including this Microsoft Post-Mortem documenting its efforts to conduct an email search in February 2004, in what is almost certainly the series of subpoenas Fitz issued shortly after taking over the investigation (the date referred to in the post-mortem–January 22–is the date Fitz issued his subpoenas). Here’s a summary of the key subpoenaed material:

February 6 was Abu Gonzales’ deadline to turn third batch of documents over to DOJ, including "records on administration contacts with more than two dozen journalists and news media outlets." The journalists, with my best take of what the investigators were looking for in brackets, include:

Robert Novak, "Crossfire," "Capital Gang" and the Chicago Sun-Times [duh!]
Knut Royce and Timothy M. Phelps, Newsday [source for their confirmation of Plame’s status]
Walter Pincus [Libby conversation, July 12 Plame conversation], Richard Leiby {background for profile], Mike Allen [identity of SAO], Dana Priest [identity of SAO] and Glenn Kessler [conversation with Libby], The Washington Post
Matthew Cooper [duh!], John Dickerson [possible additional source, Ari’s "walk-up" conversation], Massimo Calabresi [possible additional source, Wilson interview], Michael Duffy [earlier article] and James Carney [earlier article], Time magazine
Evan Thomas, Newsweek [why Evan Thomas? was he the "they’re coming after you" journalist?]
Andrea Mitchell [see Tom Maguire], "Meet the Press," NBC
Chris Matthews ["your wife is fair game"], "Hardball," MSNBC
Tim Russert [Libby complaint], Campbell Brown [why Campbell Brown?], NBC
Nicholas D. Kristof [Wilson column], David E. Sanger [January 24 document leak] and Judith Miller [duh!], The New York Times
Greg Hitt and Paul Gigot [July 17 NIE leak], The Wall Street Journal
John Solomon, The Associated Press [why John Solomon?]
Jeff Gannon [I knew Plame’s identity from slumber parties at the White House], Talon News

Note two journalists who don’t appear on this list: Clifford May, who in Fall 2003 claimed to have known of Plame’s identity, and David Cloud, who in October 2003 published an article that appeared to be based on a leak of the INR memo. While I presume Cloud may not have been included because his article was outside the scope of the investigation, I assume May was excluded because the FBI determined in Fall 2003 that he was full of shit.

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Sam Zell Chats with Fitz

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I’m not so much surprised by the news, from yesterday, that the consultant brokering a deal between the Tribune Company and Rod Blagojevich spoke with Blago’s Chief of Staff John Harris the day before the FBI arrested Blago to stop a "political corruption crime spree."

[Consultant Marc] Ganis also noted the Cubs were not part of the firm’s bankruptcy filing and said, "Nils [Larsen] is going to call you and Sam [Zell] is going to call the Gov."

Nor am I surprised by the news that Sam Zell chatted with Fitz and friends under subpoena, or that he spoke with Blago the day before he was arrested.

Tribune Co. Chairman Sam Zell hired well-known defense lawyer Anton Valukas and was interviewed in January by federal prosecutors as a "potential witness" in the criminal investigation of former Illinois Gov. Rod R. Blagojevich, the company acknowledged Wednesday.

[snip]

In their subpoena to Tribune Co., federal authorities sought information about potential staff cuts or changes to the newspaper’s editorial board. The company has said Tribune Co. executives did nothing inappropriate.

Tribune Co. also acknowledged state records, recently obtained by the Chicago Tribune, that show Zell making a phone call and giving a gift to Blagojevich.

According to records of Blagojevich’s telephone logs, Zell placed a call to the governor Dec. 8, the day before the arrest. Zell placed "courtesy calls" to several elected officials, including Mayor Richard M. Daley, that day to notify them that the company had just filed for bankruptcy protection, according to the statement from Liebentritt. "Mr. Zell’s call to Mr. Blagojevich was not returned," the statement said.

Records also show that Zell gave Blagojevich a gift during 2008. The Liebentritt statement described the gift as a music box "or other specially created work of art."

The statement noted that for more than 30 years Zell has given such gifts to "local, national and world leaders . . . designed to share Mr. Zell’s vision for the coming year for the investment climate and the economy."

I’m most intrigued by the timing of it.

Zell spoke to proscutors in January. But we’re just learning about it now, in mid-March. And we’re learning about it from official sources at the Trib, not via less official sources.

You see, Fitz got a 90-day extension to the time when he needs to indict Blago, from January 7 to April 7. Which means anyone who wants to pre-empt news appearing in the indictment has Read more →

The HJC Agreement with Rove and Miers

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Here’s the written agreement between HJC and the Bush Administration for Rove and Miers’ testimony. Some highlights:

The House Judiciary Committee (the “Committee”) will interview Karl Rove and Harriet Miers, but there will be no additional interviewees / witnesses (subject to the one exception [possibly William Kelley, who has reportedly been subpoenaed in the probe on this]). 

On this, I wonder whether there isn’t someone else in the White House who was the real fulcrum of the effort? Rove’s denials have always been couched to say he didn’t talk to DOJ, but leaving open the possibility that someone else did (at least on these issues). I wonder if they’ve included this requirement to protect that person?

The scope of the interviews will be limited to: (1) facts relating to the evaluation of, decision to dismiss, or decision to replace the former U.S. Attorneys in question; the alleged decisions to retain certain U.S. Attorneys; and any allegations of selective prosecution related thereto; and (2) testimony or representations made by Department of Justice officials to Congress on the U.S. Attorneys matter. For the period beginning on March 9, 2007 (the date of the Committee’s first written demand for information from the White House), interviews will not include the content of conversations involving: (i) Mr. Rove and members of the White House Counsel’s office; or (ii) Ms. Miers and members of the White House Counsel’s office. In the case of Mr. Rove, the interview also will include facts relating to the prosecution of Alabama governor Don Siegelman.

I’ve asked whether bullet (1) includes the alleged attempt to fire Pat Fitz–will let you know if I hear.

As to the rest–they’ve clearly carved out the White House Counsel Office, presumably to protect Attorney-Client privilege. Bill Clinton and his blow job, of course, enjoyed no such privilege.

As to official privileges, counsel will direct witnesses not to respond to questions only when questions relate to communications to or from the President or when questions are outside the scope of questioning set forth above.

Regarding the David Iglesias firing, of course, there are allegations that Bush intervened directly to give the order to fire him. Read more →