Dick Starts to Sweat

by emptywheel

I made the point on the Yearly Kos Plame panel that we need to always be asking why the Republicans are putting out the spin they are. I raised the example of a presumably Comstock-driven Byron York article complaining that Fitzgerald was out of control. Jane made handy work of the article, pointing out that $723,000 to investigate a breach of our national security (pitted against a $5 million defense fund, no less!) simply can't compare to Ken Starr's $40 million to investigate a consensual blow job.

I've obviously been stewing on this. Why now? Why choose this moment to accuse Fitzgerald and his $723,000 of getting out of control?

I don't know the answer to that. Though there are a few details I'd point out. First, Byron's ridiculous article actually appeared last month, on May 10. Just a few weeks after Karl testified on April 26, and just a few days after Libby's lawyers were notably panicking because they had no legal basis to demand materials related to Rove's conversations with journalists and others during Leak Week (and on a side note, it's worth re-reading this Pool Boy VandeHei article, because it strongly suggests a WH aide's testimony--one who verified that Libby was behind the leak--entered the mix in conjunction with Karl's testimony; also, I should note we actually have yet to learn whether Libby gets Rove's notes or not).

So I can't be sure, but it's possible that Comstock's York's panic stems from the cabal's inability to control what Rove has to say.

Fast forward a few weeks, and we get something we've been anticipating for a few years--one of the first largely Republican-sourced articles predicting pardons.

Speculation about a pardon began in late October, soon after Special Counsel Patrick Fitzgerald unsealed the perjury indictment of Libby, and it continued last week after Fitzgerald chose not to charge Rove.

 

"I think ultimately, of course, there are going to be pardons," said Joseph diGenova, a former prosecutor and an old Washington hand who shares that view with many pundits.

"These are the kinds of cases in which historically presidents have given pardons," said the veteran Republican attorney.

You know how it is. There are the kind of cases where Presidents violate the Fourth Amendment to spy on innocents. And there are the "kinds of cases in which historically presidents have given pardons." (Remind me again, which top official in the Clinton Administration betrayed his country and then went onto a cushy pardon? I'd say Marc Rich, but IIRC, he was Libby's guy.)

Though the most telling passage of this article is this one:

One attorney familiar with the Plame case said Bush might find that it is in his interest to pardon Libby sooner rather than later.

A pardon before the trial could could cut off the disclosures and spare Vice President Dick Cheney from testifying as Fitzgerald's witness about Libby, his former chief of staff.

Is that attorney named Jeffress? Wells? Tate? Cline? Just checking, because if I were one of Libby's lawyers, I'd probably be ready to admit the greymail and First Amendment protection strategies had failed, and Scooter's stinky lies were all I was left with. And, as an employee protecting the larger Neocon cabal, I'd recognize that proceeding further, what with every filing revealing some new piece of evidence suggesting Dick Cheney ordered Scooter Libby to out Valerie Plame on a vindictive lark, I might think seriously about calling it quits.

So here we have Joseph diGenova, who must be paid out of the same Shameless Propaganda budget as Comstock, arguing for a "first time a tragedy, second time a farce" repeat of the George Bush self-protective pardon.

To justify the controversial pardons, the elder Bush blamed "the criminalization of policy differences."

[snip]

DiGenova said that similarly, Fitzgerald's prosecution of Libby "is the epitome of the criminalization of the political process."

And repeating one of Comstock's Byron's talking points,

Fitzgerald, he said, has found no evidence of the underlying offense -- the knowing revelation of a covert agent's protected identity.

You see, I could be wrong, but I suspect Fitzgerald may be zeroing in on proving just that--that Dick and Libby willfully outed Valerie Plame. And there seems to be renewed energy attempting to avoid allowing Fitzgerald to prove just that.

Comments

[emptywheel]

Via Joseph Nobles at FDL, John Fund is working off the same talking point:

1. JOHN FUND: Appointing special prosecutors is almost always a mistake and in this case we now know there was no underlying crime and we knew did pretty early because Valerie Plame was not covered by the Agents’ Identity Act.

[AlleyCat]

ew, I agree. Yet another fabulous blog. I just posted on your very own last blog that I think Cheney was Woodward's source. As far as we know, THE FIRST SOURCE. I also think I made up a new word - "Fitz-fact". Please keep that big old beautiful brain of yours working in the gold mine!

[Brian Boru]

There's an impeachment exception to the president's power to pardon; somewhere down the road this whole matter might lead to impeachment. Does the president have to be actually impeached but not convicted before the exception kicks in?

[AlleyCat]

Well, GW did ask us after 9/11 to be alert. Be careful what you wish for...

I do believe that all of the parties will be pardoned, but that's no reason not to seek justice. We can't give up the search for truth.

[Jon]

Hi EmptyWheel! I keep wondering how Special Prosecutor Fitzgerald must feel about being punked by Karl Rove and Robert Luskin and Viveca Novak and presumably someone in the Dept. of Justice, if not Ashcroft himself.

It's well-known that Karl Rove operates in the dark recesses of life through an amazing network of well-cultivated and well-placed moles. It would strain credulity to not believe that, with his life on the line, Mr. Rove didn't put to good use all those contacts he had cultivated over the years. First, we have then Attorney General Ashcroft receiving regular briefings on the status of the Plame investigation. He, as well as other political operatives in his Dept. were privy to everything related to the Plame investigation. If we assume that Mr. Rove had a mole in the Dept. of Justice (which is not a stretch given his modus operandi)then we can assume that Mr. Rove had full knowledge of how the investigation was unfolding and which pieces of evidence the FBI had uncovered. Then, when the investigation is handed off to the Special Prosecutor, Mr. Rove, had one unexpected problem pop up, Matthew Cooper. At this point, Cooper was probably the only wild card for Rove in this whole investigation. Had it not been for his Attorney's unique relationship with Viveca Novak, Karl Rove might have been in legal jeopardy. It would appear that Viveca Novak, if not a mole, provided enough information for Mr. Rove to, once again, adjust his Grand Jury testimony to account for the Cooper testimony. In effect, Viveca Novak, played a key role in keeping Karl Rove out of legal jeopardy.

Several questions arise from the above scenario. As a Special Prosecutor, I'd want to know what happened during the time that Attorney General Ashcroft was getting his regular briefings and updates on the case (who else was privy to the details of the ongoing investigation and what relationship they might have to the target, Karl Rove, and whether they discussed anything related to the Plame investigation with anyone) and I'd want to fully understand the role of Viveca Novak and her fortuitious entrance into the case against Karl Rove. If Viveca Novak was passing along information to the attorney of a potential target of a Grand Jury that alerted that target to the probable testimony that a critical witness was preparing to testify to before the Grand Jury concering that target, why would the target's attorney and the source (effectively, a mole) not be in legal jeopardy for obstruction? Doesn't it appear that they effectively colluded to neuter the adverse testimony of the Time reporter, Matthew Cooper?

What does it all mean? Did he cut a deal? I don't know anyone who believes this. Did he punk the prosecutor? This seems to be the prevailing opinion among my friends. What I wonder, though, is, while he may have beaten the perjury rap, did he beat the obstruction rap, too? Or will the Special Prosectuor, having been punked once, redouble his efforts to ensure he doesn't get punked again? Or does he let it lie?

Anyway, my friends were not surprised that Karl Rove was not indicted. And the fact that he effectively punked the "great" Special Prosecutor, put more fear into them. Karl Rove came out of this bigger and badder than ever to the people who were already afraid to cross him. To them, it was more proof of his vast reach and ability to burrow under the system of justice.

Many thanks for all your research and analysis on matters Plame! You've done a great job covering all the nuances so many of us don't have to.

[radish]

Fascinating... I read this here, and then visit FDL, where Roger Ailes (the nice one) describes the following from Fox News Sunday:

Bill Kristol [...] demanded that Bush pardon Scooter Libby, saying once again that the Plame investigation is a "disgrace." According to Kristol, Ashcroft was wrong to recuse himself and name a special prosecutor, and the CIA was "out to get" someone in the White House.

Why it's almost as if someone were trying to send the boy prince a message. What next -- an editorial in the Washington Times? Oh yeah, dubya doesn't read the papers. Pass the popcorn please...

[Whig-Guy]

Why now? What is Pat's next move...

[QuickSilver]

A pardon? How could President Bush justify a Libby pardon? Since Rove squealed on Cheney was "non-indicted" last week, Bush now says he can't talk about the leak case because of the upcoming Libby trial. But if Bush pardons Libby beforehand, wouldn't it guarantee the perception that Bush was not only obstructing justice but had authorized the original crime?

Bush's statements about his role in the selective declassification of the NIE convince me he's involved in a conspiracy to polish Libby's alibi (notably related to his July 8th, 2003 meeting with Judy Miller). Any thoughts on that, emptywheel?

[JM Hanes]

An "attorney familiar with the Plame case" could be any lawyer who reads a newspaper! What with the Cooper drafts, if Fitzgerald's case loses another wheel, Libby probably won't need a pardon, and the only place the VP might be working up a sweat these days is poolside.

[RedDan]

Whoa...

emptywheel, you have consistently, along with Jeralynn Merritt (TalkLeft) and Christi (FireDogLake) been the most hard-headed and non-nonsense among the left-ish commentators on L'Affaire Plame.

With the non-indictment of Rove, and the revelations via TalkLeft that, apparently, no deals were done and no cooporation received in return for testimony, and and so on and so forth...

I am really interested to hear your justification for putting forward this thesis.

Keep in mind that I would LOVE to see this head all the way for the top, and would LOVE to see this become just the kind of GOP gotterdammerung that you describe.

But I have become weary and wary of silver bullets, wishful thinking, and hyped up, breathless proclamations of the imminent implosion of the cabal of thugs, liars and scum that have inserted themselves into our political infrastructure much the way that a tick burrows its head into the skin of a mangy dog.

Leopold, Ash, Pitt, Raw Story, and any number of breathlessly stupid escapades and credibility destroying fantasies have disabused me, and should disabuse just about everyone of the notion that thinking, speaking and writing something we desperately want will somehow make it so.

Can you explain your thinking on this?

Because it appears to me that the investigation itself is kinda done, and all that remains is the boring and pointless denouement of the Libby trial.

Can you tell me why I should expect more?

With all respect, and secret hopes that I am not willing to let lead me down the path of disappointment any more,

RedDan

[Susan S]

Jon says:
As a Special Prosecutor, I'd want to know what happened during the time that Attorney General Ashcroft was getting his regular briefings and updates on the case (who else was privy to the details of the ongoing investigation and what relationship they might have to the target, Karl Rove, and whether they discussed anything related to the Plame investigation with anyone)

It may or may not be relevant, but Mark Corallo, who is now working for Rove, was John Ashcroft's spokesperson at Justice. (Completely OT but, Mark's parents used to be my neighbors and he helped us lay sod in our yard when he was in college. I didn't know at the time that he would go to the dark side.)

[emptywheel]

Jon

We don't know that Karl punked Fitz, exactly. He may have cooperated and Fitz decided his cooperation was worth more than his indictment.

QS

I'm not sure what this pardon talk is about, but it appears clear it's a talking point (3 mentions and one newspaper article in on day?). We could figure out who is delivering that talking point to figure out whether Bush really will consider pardon or not. Bill Kristol? John Fund? Sounds like a cabal move. So it's not clear they think they're going to get one. Or maybe they're just trying to move public opinion on the issue.

RedDan

I, too, don't want anyone to take a lot of hope from what I suspect happened. But look, all of this pardon talk, all of a sudden, suggests those on the right know there is something ongoing and know it might hurt Cheney.

But here's why I think Karl cooperated and therefore Fitz may be closer to either an IIPA indictment of Scooter (though, again, the pardon talk suggests something more) or some charge for Dick.

• Apparently, the investigation is ongoing (it's not just Samborn's silence that says so, it's Armitage's silence on Monday, and a few more things he said)
  
• VandeHei's article (linked in the post) correlates closely with Libby's lawyer's panic on May 5, that they needed to get evidence of all conversations Rove had during Leak Week
  
• There has been new information since the indictment, specifically the 250 emails
  
• Fitzgerald seems to be zeroing in on Libby's claim that Dick ordered him to leak the NIE--and that claim appears to be in crumbling, suggesting Fitz is closer to proving Dick ordered Libby to leak PLame's name (this by itself would prove intent and covert knowledge, since if he had to get the approval, it suggests he knew it was wrong)

I don't know where that will take us--after all, there is some question whether you can indict a sitting VP for something he did in office. Furthermore, does Cheney's authorization of an IIPA leak negate the IIPA crime? I'm sure he'd like to argue it does. So even if I'm right about Fitz getting closer to Cheney, it may not mean charges.

[RedDan]

Thanks for that emptywheel...

It seems, therefore, that what we need to be doing is trying to lay out the various scenarios in very simple form.

1) Libby for perjury, Rove not cooperating, Rove not a witness, and Cheney??

2) Libby for perjury pending higher-level charges (depending on whether he squeals or not), Rove cooperating (to avoid similar perjury (plus) charges), and Cheney??

3) Rove for perjury, bumped up to IIPA, Rove implicated and cooperating, Cheney implicated, claims executive authority and post-facto declassification privileges, and they all skate except scooter for the technicality, for which he is immediately pardoned.

Worst case for us is "technically legal" actions on the part of those involved.

Right?

[emptywheel]

RedDan

Yeah, that's a good idea

I'd describe it this way:

1) Libby for perjury, Rove not cooperating, Fitz unable to make the obvious obstruction case, Cheney skates because Fitz can't get corroborating witnesses
2) Libby for perjury pending IIPA (with Judy), Rove cooperating for one of several reasons, Cheney for conspiracy to IIPA
3) Libby for perjury, Rove cooperating for one of several reasons, Cheney and Libby skate for IIPA related charges based on a technicality

The "one of several reasons" with Rove might be just an attempt to make sure he can work through the election (that is, he cooperates, implicating Libby further, but then Libby will be pardoned the day after the election), or it might reflect a split within the White House and an attempt to get Cheney out of there.

Now, given the urgent pardon talk, it really suggests the nutters know that significant evidence against Cheney exists. The question is, could Fitzgerald indict Cheney at all (that is, is there a way around the technicalities?), or are they just avoiding Fitz presenting more doozies like Cheney's annotated copy of Joe's op-ed.

And one more factor which I'm sure plays into this. The Wilsons have the right to sue--and Wilson's lawyer certainly sounded like he was moving that way in his Rove-day statement. You can't pardon a civil suit. So how does that play into pardon considerations?

[emptywheel]

Oh, one more point. If Fitz backed off Rove charges in consideration for his cooperation, then he must believe he can get around the technical issues ... or at least is willing to try.

[pollyusa]

Fund really doesn't seem to be talking pardon in his appearance on Reliable Sources. He goes on to put out the old standard talking points, but he doesn't seem to be talking about Libby's status.

Here's the entire quote

KURTZ: And he's still there and of course, Patrick Fitzgerald, the special prosecutor has given no public explanation for his decision.

John Fund, so now, the only person who would be charged in this whole matter is Scooter Libby, the former Dick Cheney aide, who is accused of perjury but nobody will be charged with the underlying crime of outing a CIA operative in Valerie Plame. Had the media made too much of this case, in your view?

FUND: Well, look, the administration was boneheaded and clumsy in handling this. So a certain amount of attention is understandable, but, look, the media should have learned something for the last 20 years. Appointing special prosecutors is almost always a mistake and in this case we now know there was no underlying crime and we knew did pretty early because Valerie Plame was not covered by the Agents' Identity Act. So I think the media completely missed that part of the story.
CNN Transcript 6/18/06

[emptywheel]

polly

You're right. When I mentioned it last night (my comment) I was saying he used the same "out of control prosecution" talking point as York made in May. And then I forgot what he had said when I responded to QS. Thanks for keeping me honest.

[mainsailset]

WH seems to be acting surgically here, as you point out. It's telling by floating the pardon talking point with the sense of urgency that it's vital for WH to bully their way out of this immediately. Their effort is directed at "stopping" the forward progression, not defending it any longer. As you point out, pardon Libby, end Cheney exposure ... hold on to Congress in Fall. It's all about the election at this point.

[Semanticleo]

BushI pardoned Weinberger before the trial had even begun, and he may have a 'smidgin more scruples than the little acorn.

[Sebastian Dangerfield]

Here's an interesting piece of game theory: If the investigation is very much continuing, and if, as ew suggests, Fitzgerald is zeroing in on Cheney's role (in the leak, the cover-up, or both), then a pardon of Libby *alone* would present a problem for the cabal. As a criminal defendant facing jeopardy, Libby of course has a Fifth Amendment right not to testify about anything that might incriminate him. But if he Libby is pardoned, hae can be compelled to testify, as his Fifth Amendment right not to testify becomes moot. Thus, although I am sure we will see a pardon before trial, for Bush to pardon Libby too soon -- again, assuming there is an ongoing investigation that has Cheney in the cross-hairs -- then a premature pardon of Libby alone will not stave off a putative pursuit of Cheney, and might in fact make matters worse for the cabal. Put this together with the chorus of Cheney surrogates calling for a Libby pardon, and it is hard to resist the conclusion that the surrogates -- and perforce Cheney himself -- do not believe that the investigation has any chance of hitting him directly. Rather, they fear continuing damage to Cheney from the drip-drip of revelations from Fitz's files. The cabal might of course be wrong in this, but I think the best guess is that they do not see the investigation directly targeting Cheney.

[Mimikatz]

I am generally known as an optimist, and no one would like to see Cheney removed more than I, as it is step one in the Nixon scenario for removing Bush.

However, I'm with Red Dan and Jon here. The failure to indict Rove suggests to me that Fitz could not prove a case against him because Rove and Novak kept their mouths shut just enough. The IIPA charge is notoriously hard to prove, and I believe Fitz's words at his October, 2005 press conference that he would not bring a prosecution in that area unless he were very, very certain of conviction.

Yes, Fitz is admirable and tenacious in every way, and has gone after some very big fish, but Cheney is just too big a fish in my opinion. There are too many ways for the Admin to quietly curtail this prosecution. Bush may be unpopular, but this is not 1974-5, and no one, no one at all, in the GOP will countenance doing what was done in 1974-1975. Plus, not only was a very different generation in power then, but the Dems had the Congress.

I think Cheney masterminded this to cover up the fact that they knew the pre-war assertions about WMD were bogus, plus he took Wilson's criticisms personally. Rove got in for the smear part, because he could and he loves that stuff, and probably didn't know Valerie was covert. But they won't be called to account and Libby will be pardoned after the 2006 elections but before his trial, unless they need to do it sooner. Sorry.

[emptywheel]

Put this together with the chorus of Cheney surrogates calling for a Libby pardon, and it is hard to resist the conclusion that the surrogates -- and perforce Cheney himself -- do not believe that the investigation has any chance of hitting him directly. Rather, they fear continuing damage to Cheney from the drip-drip of revelations from Fitz's files.

Point well taken, Sebastian. I'd love to hear your thoughts about how a civil suit might affect things.

[Tom Maguire]

Now, given the urgent pardon talk...

A Newsday reporter calls a few people and gets DoGenova; a talking head recycles an idea that has vexed the Dems an dhung over this case as a possible endpoint for years; and now it is "urgent".

Gee, let me know what a full court media press look like.

From the always-interesting S Dangerfield:

a pardon of Libby *alone* would present a problem for the cabal. As a criminal defendant facing jeopardy, Libby of course has a Fifth Amendment right not to testify about anything that might incriminate him. But if he Libby is pardoned, hae can be compelled to testify, as his Fifth Amendment right not to testify becomes moot.

Presumably that depends on whether Libby is pardoned for everything he did, might have done, is alleged to have done by "media" sources, or thought about incorporating into his next fictional novel.

*If* the pardon is limited to his perjury/obstruction charges, I don't know why we could not see a superseding indictment, as has been promised by the left for months.

For an IIPA conviction, it would be helpful if someone could actualy prove that Cheney knew Ms. Plame was covert. Murray Waas had this, which was sort of the opposite of helpful to the Cause:

Cheney told investigators that he had learned of Plame's employment by the CIA and her potential role in her husband being sent to Niger by then-CIA director George Tenet, according to people familiar with Cheney's interviews with the special prosecutor.

Tenet has told investigators that he had no specific recollection of discussing Plame or her role in her husband's trip with Cheney, according to people with familiar with his statement to investigators.

Finally, the WaPo had this after the Rove announcement:

With Rove's situation resolved, the broader leak investigation is probably over, according to a source briefed on the status of the case. Fitzgerald does not appear to be pursuing criminal charges against former State Department official Richard L. Armitage, who is believed to have discussed the identity of CIA officer Valerie Plame with at least one reporter, according to the source.

"I'm not worried about my situation," Armitage said last night on the Charlie Rose television show.

A source briefed on the case said that the activities of Vice President Cheney and his aides were a key focus of the investigation, and that Cheney was not considered a target or primary subject of the investigation and is not likely to become one. There are no other outstanding issues to be investigated, the source said, though new ones could emerge as Fitzgerald continues to prosecute I. Lewis "Scooter" Libby, Cheney's former chief of staff, on charges of lying to investigators and a grand jury.

I don't want to be the one to tell you, but...

[Carl W.]

I’m not sure I agree with Sebastian. I understand his point to be that a pardon to Libby is intended not to protect Cheney from prosecution but to dry up embarrassing revelations against Cheney in Libby-related filings. However, the biggest issue to the administration is the mid-term election. In that context, keep in mind that any embarrassing revelations in Libby filings are noticed by a very small number of people. (99.999 percent of people couldn’t care less what Cheney wrote in the margins of Joe Wilson’s op-ed piece) However, a pardon of Libby would be huge MSM news. It may even be construed in the MSM as a way that Bush is protecting Cheney. Even if it isn’t, it would reinforce all the (true) negative stereotypes about the administration and the path to war. So, from the administration’s point of view, it probably is better to live with the damning revelations that few people will pay much attention to. This, to me, makes it more likely that the administration surrogates pushing for a Libby pardon may be doing so because there is genuine concern about what Fitzgerald has.

[emptywheel]

Wow, Tom, you're usually not as credulous as this!

For an IIPA conviction, it would be helpful if someone could actualy prove that Cheney knew Ms. Plame was covert. Murray Waas had this, which was sort of the opposite of helpful to the Cause:

Cheney told investigators that he had learned of Plame's employment by the CIA and her potential role in her husband being sent to Niger by then-CIA director George Tenet, according to people familiar with Cheney's interviews with the special prosecutor.

Tenet has told investigators that he had no specific recollection of discussing Plame or her role in her husband's trip with Cheney, according to people with familiar with his statement to investigators.

Okay, so we have a discrepancy between Tenet and Cheney, which you assume means Cheney's telling the truth, we have known sources for Plame's identity (like Bolton and Fleitz), and we have Libby getting double super permission to leak whatever he was ordered to leak on July 8, which is looking increasingly unlikely to be the same NIE he leaked with no permission on June 25. You're right. I'm sure Dick didn't know Plame was covert.

Finally, the WaPo had this after the Rove announcement:

With Rove's situation resolved, the broader leak investigation is probably over, according to a source briefed on the status of the case. Fitzgerald does not appear to be pursuing criminal charges against former State Department official Richard L. Armitage, who is believed to have discussed the identity of CIA officer Valerie Plame with at least one reporter, according to the source.

"I'm not worried about my situation," Armitage said last night on the Charlie Rose television show.

A source briefed on the case said that the activities of Vice President Cheney and his aides were a key focus of the investigation, and that Cheney was not considered a target or primary subject of the investigation and is not likely to become one. There are no other outstanding issues to be investigated, the source said, though new ones could emerge as Fitzgerald continues to prosecute I. Lewis "Scooter" Libby, Cheney's former chief of staff, on charges of lying to investigators and a grand jury.

So Pool Boy talks to Luskin who says the case is done, ignores the Armitage quotes that suggest Fitz is NOT done, and the same person points out that Cheney's activities have been a focus of the investigation but somehow figures that Fitz' not-doneness has nothing to do with clear evidence Cheney was directly involved (with intent) in this? Okay, so maybe I am being foolish. Care to explain, then, why the nutters are so worried about Fitzgerald's out of control investigation??