Indicting Dick

by emptywheel

Via Josh Marshall and Barton Gellman, we can now say with confidence that Dick Cheney participated in Libby's July 12 conversation strategizing what to do about Wilson. The indictment reads:

LIBBY flew with the Vice President and others to and from Norfolk, Virginia, on Air Force Two. On his return trip, LIBBY discussed iwth other officials aboard the plane what LIBBY should say in response to certain pending media inquiries, including questions from Time reporter Matt Cooper. (Paragraph 22)

Josh's reader points us to this passage in an October 1 NYT article:

Mr. Libby said he told Mr. Cheney that reporters had been pressing the vice president's office for more details about who sent Mr. Wilson to Africa. The two men spoke when Mr. Cheney was on a trip to Norfolk, Va., for the commissioning of the carrier Ronald Reagan.

Mr. Libby said Mr. Cheney directed him to refer reporters to Mr. Tenet's statement, which said that the C.I.A. had been behind Mr. Wilson's selection for the trip.

And Gellman points out:

Defending the war became the animating priority aboard Air Force Two that day. According to his indictment on Friday, Libby "discussed with other officials aboard the plane" how he should respond to "pending media inquiries" about the critic, former ambassador Joseph C. Wilson IV. Apart from Libby, only press aide Catherine Martin is known to have accompanied Cheney on that flight.

Tricky Fitzgerald!! He's been hiding Dick right in the middle of his Libby indictment.

That made me wonder where else he might have hidden Dick in this indictment, and what those hidden tidbits might tell us about an indictment against our upstanding "Go Fuck Yourself" Vice President, if Fitzgerald chose to pursue that route.

First, let's look at the places in the indictment where we know Dick appears.

• On June 12, Dick passed on information he purportedly got from Tenet that Plame worked for that Counter-Proliferation Division. That is, Dick told Libby that Plame was covert.
• On July 12, Dick and Libby and Cathie Martin strategized how to respond to "certain pending media inquiries, including questions from Time reporter Matthew Cooper." Now, Libby has said Dick told him to refer people to Tenet's statement. But from the available evidence, that's not exactly what Libby did. Tenet's statement provides Dick plausible deniability of any connection with deciding to send Wilson to Niger--he pretends this was not a response to an inquiry from Dick's office.

In an effort to inquire about certain reports involving Niger, CIA's counter-proliferation experts, on their own initiative, asked an individual with ties to the region to make a visit to see what he could learn. [emphasis mine]

And Libby passed on the claim that Dick was not involved, on the record. But it's not the only thing he said.

From Cooper's testimony:

I recounted an on-the-record conversation with Libby that moved to background. On the record, he denied that Cheney knew about or played any role in the Wilson trip to Niger. On background, I asked Libby if he had heard anything about Wilson's wife sending her husband to Niger. Libby replied, "Yeah, I've heard that too," or words to that effect. Like Rove, Libby never used Valerie Plame's name or indicated that her status was covert, and he never told me that he had heard about Plame from other reporters, as some press accounts have indicated.

From Judy's testimony:

My notes of this phone call show that Mr. Libby quickly turned to criticizing Mr. Wilson's report on his mission to Niger. He said it was unclear whether Mr. Wilson had spoken with any Niger officials who had dealt with Iraq's trade representatives.

From the indictment:

LIBBY spoke by telephone with Judith Miller of the New York Times and discussed Wilson's wife, and that she worked at the CIA. (24)

So it may well be that Dick told Libby to refer to Tenet's statement with journalists. He may not have referred to it itself, but he definitely referred to what it said, on the record. But he also spread Plame's name and, to Judy at least, her status as CIA. Did he do the Plame leaking on his own? Did he disobey Dick's instructions? Or did Dick tell him to continue leaking, so long as it couldn't be traced back to OVP?

Update, of the Josh Marshall makes me want Lexis Nexus variety (and through him, an earlier tidbit from Gellman's article now flushed down the Memory Hole):

On July 12, the day Cheney and Libby flew together from Norfolk, the vice president instructed his aide to alert reporters of an attack launched that morning on Wilson's credibility by Fleischer, according to a well-placed source.

Hmm. Dick is in trouble.

Now, let's consider some indictment references where Fitzgerald might have hidden Dick--and one more likely point of Dick's involvement.

• On May 29, Libby asked Marc Grossman to put together some information on Wilson. Why did Libby do that? Did Dick tell him to?
• On June 9, the CIA faxed a bunch of documents to Libby and "another person" in the OVP. Could Dick have asked for those documents? Could he be the "another person"? Was he one of the people who identified the CIA report by marking it with Joe Wilson's name? (5)
• Prior to June 12, Libby participated in discussions "concerning how to respond to Pincus," who was writing an article on Wilson's trip. We know Dick participated in just such a strategy session a month later. Did he also participate in this one?
• Sometime before July 8, Cathie Martin heard "from another government official" about Plame's identity. Is Dick this "another government official"?
• On July 16, (after Novak leaked Plame's status but before anyone noticed David Corn's post recognizing Novak's column might involve an IIPA violation) Dick attended Gerald Ford's birthday party at the White House. Alan Greenspan attended as a guest of honor. We don't know, AFAIK, whether Greenspan's wife attended, but her husband did receive an award. Two days later, on July 18, Mitchell said:

Today, the administration is also trying to explain how it handled these documents shown earlier on NBC News, documents that were the basis for accusing Saddam of trying to buy uranium from Niger for nuclear weapons. First, it said it didn't have the documents until after the State of the Union in January. Now officials admit they had them all along, since October, but withheld them from the UN for months.

And two more days later, on July 20, Andrea Mitchell called Joe Wilson and said:

what White House sources were telling her about the real story being not the sixteen words but Wilson and his wife. (Politics of Truth 350)

Did Dick chat to Andrea Mitchell at Ford's birthday party on July 16? Did he tell her the real story was Wilson and his wife? Has Fitzgerald found any other evidence of communication between Administration officials and Mitchell (that is, phone records), or did this leaking definitely happen at the party?

So there's a good bit that might indict Dick. But certain things have to happen before Fitzgerald could get close to indicting him.

First, he almost certainly would have to indict Libby for an IIPA or Espionage violation. Dick's indictment would probably relate to conspiracy. But you can't indict people on conspiracy unless it's a conspiracy to do something illegal. Ken Starr notwithstanding, lying to reporters is probably not enough (and there's no evidence I know of that Dick was involved in the later conspiracy to lie to the FBI and Grand Jury). Unless Fitzgerald is willing to try to indict a sitting Vice President on a conspiracy to violate Joe Wilson's civil rights (again, I doubt it), Fitzgerald is also going to have to prove one of the crimes related to security violations.

Second, he'd have to get participants in some of these strategy discussions to describe what went on in them. This is the area, I think, where Fitzgerald has made the most progress. It appears, for example, that Cathie Martin is willing to testify that she told Libby she had heard about Plame's identity (she therefore corrborates Ari's testimony that he and Libby talked about Plame the day before, Libby says, he learned about her). Has she also talked to Fitzgerald about the July 12 conversation on board Air Force Two? Did she also tell Fitzgerald who told her of Plame's identity? Add in people like Wurmser and Hannah, and Fitzgerald may have a lot more dots already connected than what he shows us in this indictment.

Third, he'd have to get Libby to explain some of these strategy conversations between him and Dick. He'd need to corroborate whatever Martin said, for example. Explain why he ordered Grossman to put together information on Wilson. Explain who ordered those CIA documents.

And finally, I sincerely believe he'd have to flip Judy--flip her so hard he left her writhing on the floor. I guarantee you, Judy Miller is still hiding a whole bunch of things, things that go straight to the core of this leak. And I'm fairly convinced her claim about her Aspen comment...

In answer, I told the grand jury about my last encounter with Mr. Libby. It came in August 2003, shortly after I attended a conference on national security issues held in Aspen, Colo. After the conference, I traveled to Jackson Hole, Wyo. At a rodeo one afternoon, a man in jeans, a cowboy hat and sunglasses approached me. He asked me how the Aspen conference had gone. I had no idea who he was. "Judy," he said. "It's Scooter Libby."

...is just a bunch of bull-puckey. I strongly suspect it's a coded comment to telegraph her plan to protect noted Jackson Hole resident Dick Cheney.

So Fitzgerald still has his work cut out for him if he thinks he's going to indict Dick anytime soon.

Just remember though. Governor Ryan? Indictment number 66. Fitzgerald has already shown he has superhuman amounts of patience and persistence. So while an indictment would take a good bit more work, if anyone can do it, Fitzgerald can.

Comments

[Cathy Bihler]

Our President, George W. Bush is a Christian! America is a Christian nation which was founded by Christians. Jesus and the Bible reign supreme even over the Constitution. The Bible is the only authority that I follow and that our President should follow! Please feel free to repent by praying the Sinners prayer. Then join me on the Confessing bulletin board.

http://www.ucmpage.org/discuss_bb/index.php

Dear Jesus:

Thank You for the sacrifice You made for me.

Please forgive me for all of my past sins.

I repent of these actions, and with Your help, I will change and not repeat them again.

I know I am not worthy; but, I willingly accept You as my Lord and my Savior, and I thank You for Your blessings over my family and me.

I will pray for your salvation. Please respect our President as he is doing God's work on behalf of our our great nation.

Cathy Bihler
24118 105th Pl. W.
Edmonds WA 98020
Phone:206-546-6239
faithful@faithfulchristianlaity.org

[Cahty Bihler]

Most of you simply don't understand that you are not only blatantly wrong but you are fighting Jesus and cannot win.

When the split comes, "your side" will continue to dwindle off and die.

The Church will name the heresies that you supported and Christians will understand how deceptive the devil is to have enticed so many of you with lies.

I support our President and our great nation. God bless America and the Patriots in the White House who are working night and day to protect our great country.

[Hprof]

Question from a lapsed Methodist--will Libby's pleading guilty qualify as "repenting"? If so, I join Cathy in her call above.

[DemFromCT]

yes, faithful christian laity is a real organization. No, not everyone in America is a Christian, nor do they need to be. And since this country was founded on the principle of religious tolerance, I will merely refer Cathy to Lincoln:

"We trust, sir, that God is on our side.
It is more important to know that we are on God's side."

Let's just say there's no unanimity on that latter point. Many of Bush's opponents feel just as passionately that we/they are doing God's work by opposing Bush's policies. As an example, we take the bit about 'thou shalt not kill' rather more seriously than you seem to do.

Now that that's settled, let's move on. But, as a point of information, Cathy, which side is God's side is not something you get to decide.

[amusedtodeath]

As this administration thinks that torture is acceptable, why dont we torture this liar Libby until we extract the truth from him? And if that fails, how about "Rendition"?
After all, this concerns national security and that is their rational for torture.
Personally I am against any such policy, but I feel it would be most appropriate in this case.

[Meteor Blades]

Since you probably won't return to a previous thread, Cathy, let me repeat myself.

My blogmates here have treated you with kid gloves. And they are probably right to do so. However, I cannot be so generous.

Throughout the millennia, despicable human beings have pushed forward their own murderous agendas by claiming that they were the instruments of God's judgment. That's what the 9-11 hijackers did, just to offer one of a hundred thousand instances. It's what the stealers of land and culture and religion did to my ancestors as they drove from "sea to shining sea," operating, as the Spanish conquistadors did, for God, Glory and Gold.

I've got no beef with anyone who holds strong, personal religious beliefs. Some of my best friends and family members are Jews, Muslims, Christians and Buddhists. But when you start trying to impose them on me and mine, and calling it God's judgment, and you start talking about purification and cleansing, don't expect a courteous reply and acquiescence. In the future, please confine your notion that the horror of 9-11 and all that has occurred since is God's judgment for "our" misbehavior to whatever cesspools you normally swim around in.

Meanwhile, on the secular front, the good news, I suppose, based on emptywheel's typically outstanding analysis - what would we comprehend without you? - is that even if Cheney doesn't get indicted is that the sword will continue to hang over him and continue to damage the GOP agenda.

If he were really a team player, at this point he might take the advice of those who got Bush to surrender on Miers and simply withdraw from the field, using health concerns as an excuse. Short-term damage for Bush, but, with the right veep in place, some rebuilding of agenda might begin. Given that we're 12 months from the mid-terms, some of the "party of corruption, cronyism and incompetence" theme might be scraped off and weaken Democratic challengers in a few iffy districts.

[DemFromCT]

MB, I think that DICK, as I'll now refer to him as, is the guest that just won't leave. He'll likely be around to beat up on even longer than Karl will. Reid, btw, called on Rove to resign today.

[verplanck colvin]

DemCT, for sure. Rummy's still around too, remember...

[al-Fubar]

Indictment number 66, huh? Well "number" has six letters, so that gives us 666 - does this mean that Fitz is the Antichrist? Or that Dick Cheney is?

More to the point, indictment number 1 in this case is not exactly a foot soldier - we're already right at Cheney's door. Given the number of people who have already been flipped, the atmosphere in Cheney's shop must be just a bit toxic, don't you think?

And I continue to be intrigued by whatever happened with Rove. Obviously he offered Fitz a tidbit that at least gives Fitz pause about indicting him - whether it will allow him to skate, we don't know yet, but it seems like it would only get Rove off the hook if it is something substantial.

And really, given the whole structure of this WH, I don't see who Rove could be giving up other than Cheney or Dubya himself.

-- Rick

[bling]

EW,

Would it be possible that in any plea deal with Libby, that Fitz would demand he plead not to the obstruction and perjury charges, but to one count of the espionage statute? His whole set up of the indictment - that he couldn't charge on IIPA or espionage specifically because Libby was lying - very much left open the possibility that if everything came to light, these statutes would come into play.

But then, the next logical question is: what would motivate Libby to plead to a violation of the espionage act? Obviously, the only reason Libby would make this deal would be to reduce any possible jail time. So... the nut of the matter seems to be the sentencing guidelines on the espionage act. Less than 30 years?

[dr]

Hey, Cath, save a few bouquets for our Christian patriots in the White House who walk w/Jesus in torture.

Oh, shit, that's right: Jesus was the one who *got* tortured, wasn't he?

Well, surely it's a minor quibble betwixt the self-righteous.

Don't let it slow down the sanctimony train none.

[CaseyL]

A lot of people are assuming Libby will accept a plea bargain deal with Fitzgerald.

Huh?

If Fitzgerald has Libby dead to rights on perjury and obstruction of justice, what would motivate him to offer a plea bargain? I don't think just getting Libby to cop to the underlying charge (outing a CIA agent) would be enough. How is that a plus for Fitzgerald?

If, however, the plea deal involves Libby offering evidence against others in the WH, why would Libby agree? If he serves his few years before a pardon, he comes out a Made Man, loyalty tested under fire. His legal bills are paid, and sinecures await him in whatever RW think tank/corporation he desires. If he rats out the WH, he's branded a traitor: no support, no money, "he'll never work in this town again."

Someone please explain why Fitzgerald would offer a plea bargain, and why Libby would accept it.

Thanks.

[a]

IT GETS BETTER...

look at this: http://www.talkingpointsmemo.com/archives/006893.php

Ari = Novak's original source?

Ari cooperating with Grand Jury?

Bush team & Cheney team together on this?

Why the deletion? Washington Post full of shit? Or too close for comfort?

[emptywheel]

a

I've been saying Ari's cooperating since forever. But, yes, it seems like Ari might be Mr. X (might not, but might).

Keep in mind though, this leak has to have come from Cathie Martin, not Ari.

She's talking and talking and talking. (Actually, the edit may have come at the request of Fitz for them to spike it.)

And one more detail--this is the press briefing that got subpoenaed. I'm not sure if they've actually put the complete one back on the site. But Fitz knew there was something there in March 2004.

[pontificator]

I highly doubt that there will be any indictments under the Espionage Act. Fitz pretty much said as much in his press conference that he decided that this case is not an appropriate case for such an analysis. With respect to the espioange act, publius at legal fiction has must-read analysis here WIth respect to IIPA, now THAT is a much more interesting question.

[al-Fubar]

CaseyL -

If Libby was the prime mover in burning Plame, then you're right: Fitz has no real interest in a plea bargain, and will pretty much wrap up his investigation without further charges. He made it very clear in his press conference that his focus is on crimes, not statutes - he'd be as happy to send Libby up for perjury, obstruction, etc., as for the underlying act.

But he also made clear that he's interested in the truth, and that thanks to Libby he hasn't fully closed in on it yet. In particular, he MAY suspect that Libby was not the prime mover, but either a henchmen or had co-conspirators. He'll offer Libby a bargain if Libby will flip and lock down his case against some other prime mover(s).

As for the pardon question, this has gotten huge discussion in the Firedoglake comment threads, so I'll just give my take briefly. How CERTAIN can Libby be that he'll be pardoned?

What if Cheney is forced to step down and Bush is incapacitated (one pretzel too many, etc.)? Will President McCain or even President Rice bail his aspect out? Or what if Bush decides that Cheney ruined his Legacy [TM]?

Right now, Libby is staring past an ironclad indictment at the gates of a federal penitentiary. Does he REALLY want to stake the rest of his life on Bush having the power and desire to pardon him?

-- Rick

[CaseyL]

Thanks, Rick; that's a tidy summation.

[a]

More on the Ari Fleischer theory is now up in Jane's new posting over at firedoglake.

Could come from Cathie Martin, but it could also be from someone who has the information secondhand -- Rove, Fleischer, Novak, Pincus, all likely suspects in my book.

In fact, I tend to think it's a weaker secondhand source. Why else do they post it and then bury it? This could be the scoop of the week.

[Mimikatz]

I'll go out on a limb as say that I don't think Cheney will be indicted and I don't think Libby or nayone esle will be charged with vioaling either the IIPA or the Espionage Act. I take Fitz at his word that we deliberately have no Official Secrets Act, and that this conduct, in a situation where the leaker meant to harm the Wilsons but not the US, and Valerie was not necsssarily covert within the meaning of the IIPA because she had served here in the US since 1997, comes too close to the line to be prosecuted in this instance, even though it is, as he said, a very serious breach of the public trust.

I also don't think there is a lot left here. Rove may be on the hook for perjury and others as well. Some people may have plea deals. If Libby pleads, it will because he, the Bush Admin and the Justice Dept want to avoid a trial. He will have to do some prison time. (Min 1 year.)

But the issue of how we got into war certainly shouldn't go away; the lying, corruption, and incompetence in the Bush Admin won't go away and the attempt to draw attention to them shouldn't go away.

[a]

More on the Ari Fleischer news is up over in Jane's new posting at firedoglake, and there's a good comments discussion going at the moment with both Jane & Redd participating.

[DemFromCT]

note the politics, not the law:

Lawmakers From Both Parties Call for White House Shakeup By BRIAN KNOWLTON, International Herald Tribune 2:44 PM ET

In the wake of the leak case, lawmakers urged an investigation into any involvement by Vice President Dick Cheney.

it ain't over by a longshot.

[DemFromCT]

here's one from Reuters on ROVE:

Rove is a focus of calls for White House shakeup
Sun Oct 30, 2005 3:13 PM ET
WASHINGTON (Reuters) - U.S. President George W. Bush, whose top adviser Karl Rove remains in jeopardy in a CIA-leak probe, needs to shake up his White House staff if he hopes to revive a presidency reeling from multiple setbacks, Republican and Democratic lawmakers said on Sunday. Full Article

Gee, i thought this was all supposed to be over, already. Move on, nothing to see, and all that.

[Saugatak]

Pontificator, thanks for the post to the Espionage Act.

It's close, but I nderstand better Fitz's comments about the Espionage Act. As badly as I want to see the Bush-holes hang for their crimes, I don't support misreadings of statutes to do so. It can come back and bite you.

Classic example of narrowly reading a statute to get the result you want is John Yoo's interpretation of the Geneva Conventions to say that you could torture Al-Quaeda members because they weren't "state actors" and the Geneva Convention was an agreement between "States."

Purely aside from the fact that Al-Quaeda members were citizens of some state and, therefore, still arguably covered by Geneva Conventions, when you read the WHOLE of the Geneva Conventions, it's clear that entire purpose was to make sure that their participants followed a code of moral behavior in their treatment of POWs, a purpose which Yoo's literalistic reading sodomized.

Yoo's reading also endangered the lives of U.S. soldiers now and in the foreseeable future. The U.S. has arguably violated the Geneva Conventions and, therefore, its combatants are now no longer entitled to its protections. This is what I mean by unintended consequences of overly legalistic and literal interpretations of statute and, frankly, it's emblematic of the entire Bush Presidency.

No morals, no values, no judgment, just do what they want and screw everyone else.

[Saugatak]

I know someone very much like Ms. Bihler. It's a waste of time trying to reason with them. The type of Christians that Ms. Bihler represent are concerned, politically speaking, with 3 things:

1. Abortion
2. Gay marriage
3. Converting everyone else to Christianity

As Bush is allegedly anti-abortion (although his SCOTUS picks seem to indicate otherwise), anti-gay marriage, and his Iraq war can be portrayed as trying to subjugate Muslims and promote Christian ideals, Bush can do anything he wants and Christians of Ms. Bihler's type will support him.

My suggestion is: Don't respond and please delete the repetitive spam.

[DemFromCT]

We're nice to people, Saugatak. Ms. Bihler may be a lost soul, but other folks read us and characterize us by how we respond. Or so I've always thought.

Anyway, here's a piece from NRO debating this "non-story" and whether it has legs:

RE: THE BREWING NON-STORY [Andy McCarty]
Jonah, you could very well be right – especially if some plea deal made this all go away fast. (I’m not suggesting that Scooter should plead guilty; I’m just dealing with what Jonah has raised.)

Possible wild card: How much more effective is a media drum beat if Dick Morris is spearheading it with a theme that people might find intriguing?

I was struck last week, watching him interviewed on Fox, at how aggressively he went after Cheney. Morris is hawking a book that boldly predicts the 2008 election will pit Hillary Clinton against Condi Rice. I understand the book (which I haven’t read and have heretofore had little interest in) is doing well, so there is some public attention. Morris knows he will look like a genius if this scenario comes to pass – and he seems a tad like one of those guys who badly wants to look like a genius.

Who knows if Condi has any interest? But there was Morris, pointing out that she'd be a much better bet to get the nomination if she were the sitting Vice President, then painting a picture of the Veep, beleaguered by the Plame scandal, stepping down, Condi becoming Veep, etc.

No charges had even been filed yet. Now they have. Fitz, at the press conference, was categorical that he was not accusing Cheney of any wrongdoing. But, Morris is hot to trot, the MSM loathes the Veep, and the indictment of Libby while no harm seems to have come to Wilson for his mendacity, is only gonna encourage the CIA/State Department elements who have been slinging mud at the so-called “neocon cabal” all along.

And now they have a narrative timeline to work with. And lots of obvious questions to ask about internal deliberations in the Veep’s office throughout. Could this get traction? I don’t know. But I bet a number of media people are going to try, and so is Dick Morris. I don't have a good sense of how effective they could be.

Meanwhile, though, between a new Supremes nominee and Ahmadinejad (and Israel’s possible reaction), the page could get turned pretty quickly.

They also seem to think it'll be Scalito (Alito, the little Scalia)