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June 18, 2006

Comments

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.

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!

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?

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.

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.

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...

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

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?

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.

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

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.)

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.

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?

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?

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.

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

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.

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.

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

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.

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.

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.

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...

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.

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??

Carl W

But what if they have reason to believe the only thing Fitz has is an IIPA against Libby?

If Libby were indicted with that in about 2 months, then it would be fairly damanging and would presumably make the news. That wouldn't necessarily tie to Dick. But it would be something Bush could pre-empt with a pardon.

EW,

As I said the other day, I am consistently in danger of being in over my head on this stuff.

My layman's common sense opinion is this: It's pretty obvious to everyone that a conspiracy (used in a layman's sense of the word) occurred in the WH. Whether or not the culprits can be brought to justice is of course an entirely different matter. However, it seems odd to me that (again, from a non-lawyer perspective) the only person who is vulnerable is Libby.

I'm having trouble buying the fact that Fitz can throw the book at Libby (several, in fact), but that he can't/won't touch anyone else, since they all apparently were part of the same scheme and were acting with the same level of sloppy arrogance. It just doesn't make sense: That they can charge Libby with such a specific and hard-to-prove crime, but nobody else is vulnerable. That leads me to believe that Rove's non-indictment relates to someone other than Libby--why let Rove skate if you are just increasing the charges against somebody you already have?

The idea that going from the current status to IIPA makes it more likely that Libby will snitch on the others is true, but that takes time--and Fitz probably is concerned too about getting things as done as possible before November 9 and the reduction in leverage he will have then. A pardon in, say, December really won't impact the 2008 election--there are too many bigger issues to fry, and Bush isn’t running.

On the pardon question--and here being a non-lawyer helps--a pardon before the mid term would be a disaster for the administration. It would stink of Ford/Nixon and Clinton/Rich and protecting guilty people.

That's why a pardon would come after the mid-terms (during the holidays).

I would be happy to be wrong. I'm just trying to be realistic, comparing things today with 1973-1975, and remembering what it took to get even unindicted co-conspirator status for Nixon from prosecutors who were conducting a very wide-ranging investigation following widely televised Congressional hearings. In a very different atmosphere.

Yesterday I saw a bumper sticker that said "I never thought I'd miss Nixon."

So doesn't it figure that Fitz would make his move on Cheney before the election, if he really does have the dope?

To me, there are two differences between this administration and Nixon's. One is that Nixon's public persona was what it was, and Bush's isn't. That counts for a lot. The other is that the there weren't nearly as high a concentration of truly anti-democratic forces in the Republican party then. They were there (led by Nixon), but the lion's share of those people--WW II vets--really believed in our system. This administration's actions speak for themselves.

I agree, but both of those factors are why the GOP leadership won't turn on Bush the way a sufficient number of R leaders turned on Nixon. Unless and until there is a critical mass of R's willing to do so, Cheney isn't coming down regardless of what he did. If the Dems take the Congress and Rove starts to look not so smart and strong, things could change. That is my hope, anyway.

Mimikatz, it really gets to the heart of the matter: I agree that the republicans aren't bringing down Cheney until it is in their interests to do so. The question may really be whether Cheney is above the law.

What urgency? If folks are discussing a possible pardon, it's probably because there's so little else left to talk about. Ditto for the critique of Fitzgerald's investigation, which hardly new. Seems to me the part you're having real trouble figuring out is that this investigation is seriously winding down. That's why there's almost nothing to report.

You rely heavily on di Genova when you're emphasizing the pardon talk, but ignore him as to timing completely: "DiGenova predicted that Bush, like other presidents, would issue controversial pardons on his last day in office" -- which would mean both that the trial was over and that Libby had actually been convicted. If another wheel falls off Fitzgerald's case, Libby won't even need a pardon.

The reason Fitz fought so hard to get the annotated Wilson op-ed admitted is because the very last thing the Sp.Prosecutor wants to do is put Cheney on the stand to contradict his argument to the jury. With the Cooper drafts in play, it's going to be plenty tough enough to meet his burden already. At this point, he's got to be worrying about whether he can even make the minimal charges against Libby stick, not going after anyone else. In any event, there will be very little in the way of new revelations till the trial gets underway in January, because discovery on classified materials will take place in camera.

Frankly, I think everybody but you is looking more relaxed than energetic. You're stretching pretty hard for distinctly evanescent links. At what point, after practically nothing has gone as predicted -- or more accurately, met your expections -- for a couple of years, do you begin to examine your own underlying assumptions about who might have actually done what?

I think the new triumphalist Tom Maguire's point about Cheney and Tenet is, or should be, that Tenet provided some very useful forgetfulness for Cheney.

Anyway, I do think the pardon talk reflects anxiety about Cheney - in fact, I think DiGenova admitted as much right after one of the very embarrassing Fitzgerald filings came out (probably the 4-5-06 reply to Libby's third motion to compel discovery). But I don't think it's legal anxiety, I think it's anxiety on the part of the administration and others about the damage that could be done to the White House by the unflattering portrayal of Cheney and OVP at the trial and in the lead-up to it.

So the point is I don't think there's necessarily any anxiety about where Fitzgerald is going with his prosecutions. I suspect the pardon talk is the sign of a straightforward political calculation: Rove off the hook means the political cost of pardons is significantly lowered, so it more easily is outweighed by avoiding the costs associated with political embarrassment for Cheney (which is costly to the administration, Cheney's own lack of concern about his reputation, such as it may be, notwithstanding). Moreover, Bush et al will simply send the quiet signal to their reporters that the pardon was done for Cheney's sake, not Bush's, at some cost to Bush himself etc etc, thereby further minimizing the cost.

But let me return to a point I've been trying to emphasize: the talk of pardons in the face of political embarrassment to Cheney regardless of the fact that he may not be legally vulnerable is another opportunity to put the focus on what Cheney and OVP were doing as a matter of fact in summer 2003, regardless of where Fitzgerald is going on the legal front. He may very well be wrapping up - though, having rethought it, I sort of doubt he'll announce an end to the investigation if he doesn't have to, in only to keep open the investigation so that anyone who is pardoned gains valuable (to Fitzgerald) immunity. But rather than putting the focus on where Fitzgerald is going, use the fact that he's probably wrapping up to call for a more thorough look at what actually happened.

I do think it's unfortunate that Fitzgerald announced, probably incorrectly, that he did not have the authority to issue a public report, or a report to Congress, or whatever.

Plato's Republic is a discussion about the meaning of Justice. Everyone is discussing the fine points about whether it is "harmony of the parts" (everyone happy in his place) or fairness, when Alcibiades walks in and says "Justice is the interest of the stronger." No one has a real answer for that.

That is not always so. Through long periods in this country fairness and equality (something IIRC PLato didn't discuss or think much of) have been key components of justice. Of course Cheney ought not to be above the law. But Justice is a blind woman, and Ashcroft covered her with a robe.

These are bad, bad times. But that is precisely when seeing clearly is needed, IMHO. But then, I have a touch of food poisoning and can't eat much, so maybe I am just grouchy today.

And I thknk you were correct earlier, EW, to give a big role to Viveca Novak, whose husband was reportedly appointed to the FEC last December.

And I'm certainly not saying that Cheney shouldn't be taken down, just that we can't expect Fitzgerald to do it in this climate. We have to chip away at their aura of invincibility and get enough voters to agree that he seems weak and incompetent enough fora sufficient number of R's to join in the enterprise of saving the country.

Jeff,

On what basis do you say that Fitzgerald is incorrect in stating that he can't make a public report? I thought the law on this was crystal clear and he was exactly right, but I'd love to be wrong.

Jeff

"I do think it's unfortunate that Fitzgerald announced, probably incorrectly, that he did not have the authority to issue a public report, or a report to Congress, or whatever."

Ah, you're now seeing one of a host of problems which derive from Comey's explicit disavowal of the Special Prosecutor regulations in 28CFR600! Having relied exclusively on other DoJ statutory powers in making the Fitzgerald appointment, the controlling legal authority, as it were, may indeed prohibit precisely the sort of report you probably have in mind.

Save through indictment and trial, I don't believe a prosecutor can legally reveal what he has learned via grand jury testimony, and of course, the grand jury turned out to be a key investigative tool here. We know nothing, and aren't likely to learn much, about the agreements he made with individuals who testified via deposition either. In addition, the court, in the form of Judge Walton, for example, certainly seems sensitive to issues relating to the "innocent accused." If there's any one thing that characterizes Fitz's approach to motions, affadavits & discovery, it's that he consistently argues for revealing rather less than more. This is not simply a matter of protecting an ongoing investigation, it's a modus operandi.

The fact that Fitzgerald also cannot be required to issue a report or to account for his investigation in any way by anyone, is part and parcel of the "out of control prosecutor" complaint that has been so emphatically discounted in this very thread. The legislative act, and, I suspect, attendant litigation, that it would probably take to obtain such an accounting could all have been avoided, if Comey had simply utilized the existing guidelines and appointed a Special Prosecutor from outside the DoJ as specified.

Um, JM Hanes

I don't remember you hanging around here much, certainly not going back years. So I'd venture to guess you don't know a thing about whether what I've predicted has come to pass or not. Or perhaps you haven't even read one week of posts to see that I, along with several other people you probably believe you know the thoughts of, thought it very likely something like what happened on Monday would happen, that Karl would escape indictment for his actions (and that he wouldn't, at the same time, be able to claim innocence).

Also, perhaps you haven't even read this thread to see that it's not just DiGenova, but it's also Kristol talking about pardons.

Jeff

Yes, point well taken, we'd do well to keep the proven culpability of Dick at the forefront.

Did you see that Matalin is hosting a dinner for Libby's defense fund? When the Plame scandal hit on K Street, all Matalin could talk about was that good people were going to have to pay for lawyers. They used the fictional scandal in K Street to make the same point. But it was laughable how every time they came back to Mary she was still going on about the injustice of having to spend money to lawyer up. Of all the injustices to obsess about! At least she's putting her money where her mouth is, getting behind this cause.

This may be annoying to some, but I am still interested in finding out who official one is. Does anyone know if Woodward has come out with the book that he was interviewing offical one for? Are there any clues in there that might point to offical one? Can it be used to definately exclude some people?

Carl W. You're absolutely right that a pre-midterm pardon would be a huge political liability, but that is precisely why such a pardon will happen after the mid-terms. Because the Libby trial is not scheduled until after the mid-terms (Jeffress certainly earned his fees right there), and I would bet that it will move at least one more time, there’s plenty of room for exercising the pardon power at an opportune time after the election (Christmas time, perhaps).

EW: I started to write a looooong comment on the Wilsons’ possible civil suit, but it got rather dense and wooly even by my own rather lax standards and scrapped it. (Plus I didn’t want to do the cabals’ lawyers work for them by mapping out their motion to dismiss in detail.) I will try to reconstruct the gist of it and be brief (I will surely fail at both).

The bottom line is easily stated: Unfortunately, I don't hold much of any hope that a civil suit by the Wilsons would have much of any impact. As I see it, if they brought such a such a suit (which to my thinking is far from a foregone conclusion), it would not get very far. Indeed, I think there's a good chance that all or most of it would get tossed on a motion to dismiss, before discovery even gets going. (In a motion to dismiss, a defendant says, basically, even if I assume that every factual assertion in your complaint is true, they fail to add up to a claim for relief against me.) There’s some chance that, with careful pleading, a good draw on the judges wheel, and some luck, they would get to do some discovery and lose the case on summary judgment (which is a device by which the defendant takes all the evidence developed so far and says, if you take everything the plaintiff can introduce at trial as evidence, and assume a jury credits all the plaintiff’s evidence, there’s still no case.)

The longer version follows, with one big fat caveat that I have not done any real research on the potential claims but am instead relying on my general knowledge and experience with ordinary tort law and with "constitutional torts" (i.e., actions by individuals to recover against government officials who violate constitutional or statutory rights.)

A. The more sexy-sounding possibility is that the Wilsons could be contemplating a federal civil rights suit against Rove and the gang. For all you law geeks, this would be some kind of Bivens action (so named after Bivens v. Six Unknown Federal Narcotics Agents, the Supreme Court case that recognized a right to sue federal government officials for violations of constitutional rights). The Supremes recognized a private right of action for Fourth Amendment violations in Bivens, but made it clear in that and subsequent decisions that it was not opening the door to creating a private damages cause of action for every conceivable violation of the Constitution or federal statutes. The lower federal courts have been, accordingly, pretty crabbed and grudging in their extension of Bivens into different contexts.

The problem will be for the Wilsons to articulate an actionable constitutional violation, which will not be easy. Even leaving aside the courts’ reticence to endorse Bivens remedies in any contexts other than those marked out by the Supremes (4th Amendment search and seizure, 8th Amendment cruel and unusual punishment, 5th/14th Amendment discrimination), there are serious issues with any First Amendment retaliation theory or with any 5th Amendment liberty/due process theories, given the state of the case law.

And if the Wilsons got past all of this – that is assuming a court agrees that the facts as pleaded add up to a constitutional violation – they would have to deal with “qualified immunity” issues. In particular, the suit will have to survive a determination whether, at the time that the leakers did their leaking, it was “clearly established” that what they were doing was in fact unconstitutional. If the courts find that it was not “clearly established” that the activity is unconstitutional, then the suit is dismissed, even if the activity was inf act unconstitutional (funny old world, the law, ain’t it?). (Oh, and by the way, the defendants not only get to raise this defense at every point in the proceedings, they can also appeal any adverse determination on qualified immunity {say, at the motion-to dismiss or summary-judgment stages} immediately and repeatedly. The whole qualified immunity scheme is designed to help official defendants get these cases knocked out early or tied up in pretrial proceedings forever.)

The only other federal claim that comes to mind is a civil action under the Privacy Act—which could be a more promising path than the civil rights route. I don’t know a whole lot about the Privacy Act other than the fact that it is atrociously drafted and that has made for a lot of very messy case law. My gut feeling is that the Plame disclosures don’t deal with the kinds of information that Congress had in mind when enacting the Privacy Act, but again, my knowledge here is limited and the subject is rather vast. The Wen ho Lee case might have been an interesting test of what kinds of information come within the Privacy Act, and it involved government officials smearing an individual through leaks to boot, but it settled after the D.C. Circuit upheld contempt sanctions against reporters who had refused to testify in civil discovery as to their contacts with government officials. (Incidentally, if it is the case that the Privacy Act applies to the disclosures here, then you can kiss goodbye any constitutional Bivens action, as the case law is very clear that where Congress has provided some kind of remedy, even if it’s not a very good remedy, the courts will not imply a Bivens-type remedy. But the Wilsons wouldn't have to deal with the qualified immunity dance with a Privacy Act claim.)

Finally, there are, it seems to me, two types of what I’m calling “ordinary tort” claims that the Wilsons could consider bringing: (1) some kind of defamation-related claim, or (2) an intentional infliction of emotional distress (IIED) claim. A defamation claim in this context is, it seems to me, dead on arrival. Joe Wilson is clearly a “public figure” at least for the purpose of this debate, and thus for his own claims, he would have to show that the defendants published false and defamatory information about him with reckless disregard for whether the information was true or false, which I just don’t see here. Different story for Valerie, who was patently not a “public figure” prior to her outing and who was clearly injured by the disclosures, but I see serious problems for her trying to make out a viable defamation claim. I have a problem, for instance, with the fact that Valerie was not injured by the false part of the story – the stupid pushback point that Cheney didn’t send Wilson, Valerie at the CIA did – but rather by the true part of the story, i.e., the fact of her CIA employment. You just can't base a defamation action on a true statement.

IIED is something of an all-purpose, garbage-can type of tort action which requires, among other things a showing that the defendant deliberately engaged in behavior that is “outrageous” with the intent that it cause severe emotional distress or with reckless disregard for whether it did so. The key vulnerability will be in showing that the behavior is “extreme and outrageous” as a matter of law . While I think it was pretty outrageous – and so would most folks around here – the courts tend look for really really shocking stuff; the threshold is very high and I could easily see a court – particularly with the kinds of federal judges that are becoming an increasing percentage of the bench – throwing the case out on the ground that the conduct, while clearly not very nice, was not “outrageous”; call it the Rich Cohen standard. Moreover, the facts that would help show "outrageousness" -- like the effect on CIA ops and networks -- is not information that it seems the CIA is eager to allow to be made public.

That’s my gloomy take on the civil suit. I'm not saying the suit can't or shouldn't be brought, just that it's a long shot. I do, however, tend to err on the side of pessimism when evaluating the viability of claims – it’s just a professional habit. But I think there are enough problems here that I wouldn’t rest much of any hopes on vindication through civil litigation here. Now, if it turns out that the Privacy Act can be applied here (or that any other claim survives a motion to dismiss), the Wilsons could at least survive long enough to get into discovery, which could certainly make these schmucks uncomfortable.

If I were bringing such a suit, I’d bring it in federal court in D.C., where there are some very good trial judges, where it is abundantly clear that there ain’t no reporter privilege, and where you have deep blue jury pool. Since the appeals court is going to be every bit as important as the trial court, I would much prefer the D.C. Circuit if I were the Wilsons. Although many D.C. Circuit judges are very conservative, some of those are principled. And that court has already dealt with the Cooper and Miller subpoena cases in a way favorable to the anti-anti-Wilson camp. I’d avoid Maryland like the plague if I had a choice in the matter, as the last court in the country I would want deciding appeals in this case would be the 4th Circuit.

SaltinWound-I'm sure Matalin is especially sensitive to the cost of attorneys. She and her husband are close friends with the Clintons (who themselves racked up a huge attorney bill and LDF), and Carville has himself had to pay to defend himself against some Clinton-related accusations (Gennifer Flowers).

Mimikatz;

""Justice is the interest of the stronger." "

Appreciate the Platonic reference but, as our good friend Maguire
would quickly remind those who visit his blog, "We're all about
winning". Justice for these folks is having your neck pinned under
their jackboot. Anything less is simple sentimentality and human weakness.

MayBee, I'm not denying it can be a legitimate gripe. It's a sense of proportion that seems to be lacking. Who else is close friends with who? This is interesting!

I have to turn off the italics! Everything is too emphatic.

OK, I can't find the quote now but I did hear President Bush say on T.V.last week, in regard to the Plame investigation, that the White House had been informed that the investigation was over. And the New York Times, June 14, 2006, reported that "the decision to decline to prosecute Rove effectively ends the active investigative phase of Fitzgerald's inquiry."

Go read truthout's latest.

It's either brilliant, tragic, or craaaaaaaazy and only time will tell.

My bet is on deep, deep, denial...but then again, this post of emptywheel's seems to be suggesting that Cheney is still in the sights.

Which is what truthout is suggesting.

Hey! Emptywheel? Why don't you write a post suggesting that Bush is in the sights...and see if Truthout magically finds the same info?

emptywheel

Actually, I've lurked here with some regularity for awhile, although I've only left an occasional comment relatively recently. In my initial post above, where I refer to predictions & expectations, I meant "you" in the general, not the particular sense. In light of the preceding sentences, however, I do see that I failed to make that clear, which I regret.

At the same time, I still think the inferences you're trying to draw here are a major stretch, and that characterizations like describing York & Libby's lawyers as "panicking" strike me as more wishful than accurate. Ditto for the "proven culpability of Cheney" and the idea that he's really starting to sweat now that Rove has wriggled off the hook.

FYI, I did, indeed, read this thread and saw Kristol mentioned, sans link, but I was addressing your argument which relied largely on di Genova. Subsequent commenters appeared to be unaware that last minute pardons were what he had in mind. Perhaps they didn't actually take the time to follow your links as I did. As for Kristol himself, if you read the transcript, his comments sounds pretty unremarkable given his long standing condemnation of Fitzgerald's investigation as a political crusade -- you've noted as much elsewhere yourself.

If you prefer that I refrain from voicing an opinion here, you have only to ask, and I will certainly oblige.

Citing fundraising amounts and budgets is an interesting view of the cost of a civil society. Maybe Al Gore and Company temporized adequately to avoid the fundraising from the White House prosecution; credit side of the ledger. It is a reasonable time now to assess the Rove cost, and pardon cost, in a political sense. The Libby defense cost is diminutive compared to a quadrennial campaign budget. The target costs prominently now are political, which, to me, is the motive behind the mantras Nothing Illegal, Too Narrow IIPA. Since Ykos, refutation nearby-here, has become quantifiably more cerebral. A lot of it is interesting. I find surprisingly I resist any attribution of justice to the duplicitious Alcibiades; loyalty is an interesting way to write one's chronicle. The conjectures about how Rove got exempted comprise an interesting thread in which to mention Alcibiades; but we are talking about several such characters guiding the ship of state. Rove has company in that respect. I think the Amb. has taken a fairly circumspect approach to whether to observe the outcome of the Libby indictment before launching a personal complaint, as the long legal discussion, above, delineates. Having perused argument of a few of the defense counselors already involved, I expect some reconfiguration of any prior approach to such a knotty problem; essentially, the administration is only skating on thin ice with regard to quite a number of extralegal innovations it has pursued as core management style; it is beyond what other administrations have attempted. The several court actions ongoing in which the solicitor general is claiming state secrets I see as laying the groundwork for some such attempt to paint the Libby indictment with a similar graymail brushstroke. On the discussion about whether Fitzgerald will issue a report, or someone else will, I have read various interpretations; all I take to be too early in the process now for a conclusion, although I need to study the matter more; one generalist who discussed the matter at the time of expiration of the first Grand Jury broadly though not specifically appeared to agree with the legal theory as developed by the commenter above. I still believe the outcomes in the Anna Diggs Taylor court over the next few months, as well as that in Vaughn Walker's court beginning again this week, might add to the administration's sense of chastisement; something Alcibiades never would endure. Plato kind of misses the essence by grasping for the ephemera; but democracy as a government form, and inductive thinking as a millenia human discipline were in their infancy at that time. It seems from here this administration is tarred and facing serial elections and fairly important explaining to do before some smart judges.

There is no justice system in America if they walk for these crimes against humanity.
Fitz has not been bought-but the media has. He says nothing-while Rove's liar says Fitz sent him a fax, Fitz called him and cannot produce the exact wording -which is it? Fitz cannot comment ongoing investigation.

Then a criminal case shows up in Pacer Sealed. v. Sealed at just the time when Rove should have been indicted. It is perfect for the other side, they seal up what they know should be an indictment-discounting, discrediting most blogs on the left predicting indictment -all at the same time. It's not like there isn't enough evidence for it. That just meant Fitz had to get going on the other indictments-Cheney & Assoc...

"Then a criminal case shows up in Pacer Sealed. v. Sealed at just the time when Rove should have been indicted."

Not precisely. Because cases are numbered consecutively, Sealed vs. Sealed would have to have been filed on either May 16th or 17th. Pacer also gives no indication as to whether "06 cr 128", as it's incorrectly labeled, represents an indictment or something else. I believe we subsequently learned that the grand jury was considering other matters on the Friday 12th, which means they would have had to hand down the indictment on Wesnesday the 10th, at the latest. Mr. Ash glossed over the fact that he had to expand the timeline slightly backward in one of his editorial posts to accomodate that information.

I believe Ruskin said that Fitz "does not anticipate seeking charges against Rove at this time". Is "seeking" the weasel word?

Might it have been more accurate to say Fitz does not anticipate pressing charges (that have already been sealed)?

Matalin sure is conspicuously leading the Libby defense effort, money-wise.

JM Hanes

Well, you had me until you suggested Dick's culpability hasn't been proven. On an IIPA charge? No. On central involvement in a smear of Joe Wilson? Well, I guess not if you're arguing that the guy who writes the talking points isn't centrally involved. Though I tend to consider that culpable.

We welcome civil and intelligent discussion over here, of whatever partisan stripe. But I would appreciate if your comments about me or any of the other commenters was more careful. We stick pretty close to court filings and other provable data--and yes, we speculate based on that. While our speculations may prove to be wrong, they are usually better founded then a lot of what the right mindlessly produces and some on the left breathlessly proclaim.

Many layers of legal detail that get posted on this topic are beyond my grasp. But I do find several things interesting:

(1) Recent timing of wingnut statements about Libby pardons. All while wingnuts continue to hold fundraisers for Libby's legal fund -- raising $5 to go against a <$800,000 Fitz investigation? Interrresting... That's an intriguing contradiction. Reminds me of John Mitchell's "watch what we DO, not what we SAY" piece of advice, circa 1972.

(2) The quote from John Fund (who is unfamiliar to me) "...the administration was boneheaded and clumsy in handling [ the Plame affair]." Ummmmm... echoes of a WaPo Oped, "A Good Leak," April 2006, which claimed that the leak might have been stupid, but it was not illegal. I interpret this to mean that wingnuts are trying to UNLINK the two elements of a very dynamic meme: "we're incompetent AND ALSO criminals." Although a Court of Law may not convict these guys for stupid, illegal behavior, it's my sense that the Court of Public Opinion is pretty well decided on both points. Nevertheless, the Court of Public Opinion is Rove's territory, so I assume that he'll try to eradicate the 'we are criminals' meme by:
(i) smearing Fitz,
(ii) dissing the seriousness of the crimes ( I can't think of a more serious crime than weakening WMD oversight),
(iii) leaking to favored members of the press,
(iv) going on the Talk Shows to keep putting out the meme that Plame leaks 'were not illegal'.
All this will occur while they continue raising $$ for Libby's legal fund, and softening the US public up to accept 'pardons.'

(3) The sudden appearance of "JM Hanes" at EW, during the very week when wingnuts are raising $$ for the Libby defense, while putting out the meme that 'there ain't been no crime here -- that overzealous Prosecutor can't even bring legitimate charges..." I don't know JM, and I'm a new poster here myself, so I don't want to be too hasty in my judgements. However, I found JM's sudden appearance somewhat entertaining.

There are layers to this that my feeble mind does not grasp. However, I do note that it is all playing out against a background of Katrina, a war going badly, a sinking dollar, and worrisome economic indicators. The Bu$hCo crowd is secretive by nature; secrets seem to be like dope to them. And Fitz has secrets. That man must drive the Bu$hCo crowd nuts.


emptywheel

If you weren't more interesting than most, I wouldn't be lurking.

If talking points and pushback = culpability, then sure, Cheney is guilty as charged, along with everybody else in Washington. I dislike Cheney myself, but when it comes to central involvement, where exactly does the primary leaker (presumably Armitage) fit into the picture you've been drawing?

Okay, so we have a discrepancy between Tenet and Cheney, which you assume means Cheney's telling the truth...

Is that what I assume? Actually, I assume that without evidence, such as useful testimony from Tenet, Fitzgerald can't go forward agaisnt Cheney.

Pool Boy talks to Luskin who says the case is done

"Pool Boy" is, umm, Vandehei? (Years later, your intellectual heirs will deplore the predilction for odd nicknames adopted by the left; how many Google searhes will fail becuase some hapless researcher looked for "Rove" or Russert" rather than "Turdblossom" and "Pumkinhead"?)

From the article, the source was "briefed on the case". Now Fitzgerald is providing briefings to Luskin? Well, that sort of answers the question of who provides Fitzgerald's supervision.

Care to explain, then, why the nutters are so worried about Fitzgerald's out of control investigation??

Now, I didn't mean to imply that you were a nutter for being convinced that this investigation is ongoing. Sorry.

Or do you think that righty bloggers are worried about the ongoing investigation? I must have missed them.

Let me toss in Howard Kurtz on the Newsday "Pardon" article. A fair summary would be that he considers it to be speculative, self-generated, slow-news day BS.

Or maybe it is an emerging White House talking point - you make the call!

I think the new triumphalist Tom Maguire's point about Cheney and Tenet is, or should be, that Tenet provided some very useful forgetfulness for Cheney.

I am de-closeted! As to the quality of Tenet's memory, I did write this last April:

And Murray Waas reported that, although Cheney claims to have learned about Ms. Plame from then-DCI George Tenet, Tenet does not remember the conversation (although I bet he remembers getting a Medal of Freedom!)

Just to pick up the "culpable" point, since the post is about Cheney sweating and his lawyers worrying, is "culpable" meant in a legal sense? Is there an actual statutue in mind?

Or is Cheney just sweating becuase we might find out that he asked Libby to get work on the Wilson push-back, and Libby ran off the rails?

My impression, from all this continuing investigation talk, is that some folks are expecting actual criminal charges, not just bad PR. Have I missed a nofficial prediction?

The post closed as follows:

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.

As to the renewed energy, I guess energy is in the eye of the beholder.

As to "zeroing in" - what is the official editorial guess here - is Fitzgerald contiuing to hear witnesses and take testimony, or is he simply sifting through past transcripts?

readerOfTeaLeaves

Excellent points, all of them. I too have been amused by the fundraiser for a case that will end in pardon.

JM Hanes

Not sure if you saw Armitage on Charlie Rose the other night. But from his comments, I'd say Armitage knew his statements didn't rise to standards of the IIPA, from which I can only assume that 1) he could easily demonstrate he had no intent to out Plame and 2) he probably didn't OUT Plame, identify her by name or as covert. He may not have known she was covert, though that does seem unlikely. In any case, he seemed confident enough that he hadn't broken the law to come forward (and he claims he never had a lawyer in this case). I have been giving much thought to Maguire's point that Rove clearly was speaking on background to Cooper; if he did the same with Novak, it eliminates some of Rove's guilt, even if he is the leaker of Plame's identity (as distinct from what Armitage did). There are hints of some discussion of whether conversations were on background or not in some of Fitz' filings, so I imagine it is something that was central to a lot of testimony. But as I have been saying for weeks now, Libby was ordered to leak something to Judy Miller before their meeting on July 8, and his explanation for that order--that Dick ordered him to leak the NIE--seems to be falling apart. His NIE claim is completely illogical given the known timeline of things. And Fitzgerald has apparently fairly recently identified a new journalist meeting which pertains to this issue, so he may have more than the logical improbability of it to demonstrate that point. So Fitzgerald may be closing in on evidence that Dick ordered Libby to leak Plame's identity. That's intent, right there. And I'd say that makes Cheney central to culpability.

Tom

Oh, I don't know whether the righty bloggers are worried about the ongoing investigation. I only read you, and you don't seem to be feeding at the talking point trough and you certainly don't seem to be worried. But righty pundits--the ones getting spoon fed by Comstock and her ilk--do seem to be worried about it.

As to the Cheney/Tenet discrepancy, it is possible (though I have no evidence for it) that Fitz knows of a different CIA source for Cheney--someone like Fleitz. In which case Cheney's claim that he learned from Tenet, when Tenet denies that and presumably denied that when he testified, would suggest that Cheney's claims don't mean all that much. As I said, I have no evidence for this (nor do I have evidence that Fitz knows of Cheney's real source, whether it's Tenet or not). But I just think the discrepancy could just as easily support the case that Cheney's a lying sack of shit as it refutes it.

JM Hanes

As for Kristol himself, if you read the transcript, his comments sounds pretty unremarkable given his long standing condemnation of Fitzgerald's investigation as a political crusade

Interestingly Kristol had a different take early in the investigation.

Surely he [Bush] should do his utmost to restore the White House's reputation for honor and integrity by calling together the dozens of more-or-less "senior" administration officials and asking whoever spoke with Novak to come forward and explain themselves. Presumably the relevant officials--absent some remarkable explanation that's hard to conceive--should be fired, and their names given to the Justice Department. The president might also want to call Mrs. Wilson, who is after all a government official serving her country, and apologize for the damage done to her by his subordinate's action.
Weekly Standard 10/13/03 issue

Tom

I addressed the culpability in my response to JM. But as I said, if you look at the discussion about the NIE, it appears Fitzgerald has relative new information regarding a July 2 meeting with a journalist related to the NIE leaking. That suggests he has either had new testimony from someone (we know Novak has testified since November, for example). Or that he has found something in those emails that clarifies the NIE question.

I also noticed that Kristol specifically mentions the State Department as the source of the Novak leak. I've seen many references that Novak's source was not in the WH, but I don't recall anyone pointing directly to the State Department before.

KRISTOL: Well, because it turns out the person who leaked to Bob Novak was not part of the Cheney-Rove-right-wing conspiracy. He was someone from the State Department who was actually rather against the war in Iraq.
FNS 6/18/06

I don't know where RCP got this transcipt, I was unable to find it on the Fox website in it's entirety.

sorry here is the link FNS 6/18/06

Interesting catches, polly, both of them. Pretty clear Kristol is pushing the same Richard Armitage nonsense the rest of the right wants to push.

I didn't see all of the Armitage interview, but I recall Armitage was saying he was for the war. Kristol has the State department source as "rather against the war in Iraq".

Unfortunately you must pay to get the transcipts of the Charlie Rose show.

Oh, one more point, readerOfTeaLeaves.

We had visits from a fairly stupid paid troll last week. Quicksilver quickly exposed her. But yes, the sudden visits from new conservatives is interesting. Though JM and the ones we've gotten since the paid troll have all been intelligent and polite, so I don't really mind.

I did pay to get the clip through Google Video. $.99. And yes, Armitage basically said he was for the war, though not for the timing of it. He repeated the story (which is in Woodward's book, but then it probably came from Armitage in the first place) that Bush asked him and Powell whether they were with him on the war, and they both said yes.

But in Bill Kristol's mind--particularly as someone involved in the back and forth between DOD and State--I'm sure Armitage appeared to be against the war.

Thanks for the confirmation EW. JM Hanes is a regular over at Maguire's blog, he has always been polite and on point with me over there.

emptywheel,

There's something bigger in your theory than I think you realize. It seems obvious that when Cheney talked to Fitzgerald Cheney backed up Libby's story about the NIE. If Fitzgerald has even more evidence that that part of Libby's story is a lie designed to hide Cheney's order to out Plame, then Fitzgerald has grounds for an obstruction of justice charge against Cheney. And that means he has a conspiracy charge (on the obstruction, if not the outing) against Libby and Cheney. If Bush backed the story, then Fitzgerald's life gets really interesting. Cheney can be indicted, but Bush can't. What's a prosecutor to do when he has evidence against sitting President? Oh, I remember, you name him as an unindicted co-conspirator.

you certainly don't seem to be worried.

LOL. Now ask me about the Yankees.

On the Armitage "nonsense", as well as the pardon talking point, this transcript from Chris Matthews on the evening that Rove walked is a Comedy Classic - notice how Isikoff carefully balances the public's Right to Know with his right to hype his upcoming book:

ISIKOFF: But it is worth saying, there are still a few acts that could be played.

MATTHEWS: Are we going to get a pardon here? Are we getting a pardon for Scooter in this whole thing?

ISIKOFF: Well certainly Scooter is going to make a big push for a pardon in the last days of the Bush presidency. But remember, there is a trial, Rove could get called as a witness in the Scooter trial. So we may still learn a bit more at that one. And the two other acts that play out here. One is Joe Wilson could file a civil suit, and there‘s an indication today from his lawyer that he may well do that. How far it gets, hard to know, but he could. And also...

MATTHEWS: ... How does Joe do it? Doesn‘t his wife have to file?

ISIKOFF: Well, yes, they could do it—she could file it. And then secondly, there‘s always the possibility the Democrats may get control of one or two Houses of Congress this fall, and they could hold hearings on what happened here and that would be one way in which we could learn more about what really went on...

MATTHEWS: OK, who leaked to Novak? Who was the prime leaker here, do we know yet? Or is that in your book that‘s coming out?

ISIKOFF: Oh, that will be in the book.

MATTHEWS: Anybody else want to venture who the prime leaker was that leaked to Novak and started this mess back July 14th of 2003? Do you want to give me the name, Jim?

VANDEHEI: I don‘t want to give you the name. I‘m going to read it in his book or you‘ll read it in our paper.

Admitting that is is Armitage sort of kills the story line. So don't admit it! And these guys get paid big bucks for this. And I am supposed to lose sleep over their ability to protect their sources. Grr.

Anyway, I think Novak and Armitage are employing the same ruse as Fitzgerald was using with the disclosure of evidence - no comment until the investigation is over. And since in each case it is entirely self-serving, why would Armitage (just to take a name at random) ever be in a hurry to admit that the investigation was over?

Or, flipping that coin over, why would Armitage be in a position to know that the investigation is continuing - is he engaged in intense negotiations with Fitzgerald without even retaining counsel? Man, who *was* running the country?

My guess - Novak and Armitage are both likely witnesses at the upcoming trial and have been asked to keep quiet; Armitage has every reason to be cooperative with Fitzgerald on that point and no reason to explain his cooperativeness.

Re this:

[Armitage] probably didn't OUT Plame, identify her by name or as covert. He may not have known she was covert, though that does seem unlikely.

Ahh, well. My own guess is that this is one focal point of the Libby effort to get other people's testimony. We know Libby wants to impeach Grossman. One theme the Libby team may be considering is this - presuming that Armitage leaked twice, and presuming that he learned about Plame from Grossman and/or that INR memo, isn't it plausible that Grossman did not exactly emphasize to Armitage the deeply-fraught significance of the Plame tidbit?

So, if Grossman didn't highlight it to Armitage, why should we think he highlighted it to Libby, or believe him if he says he did?

And if it was just a casual aside throwaway line, why should we think Libby is lying when he says he forgot about Grossman mentioning it?

In which case, the fact that Grossman told Libby about Plame in mid-June just wafts into the memory hole. That still leaves Ari and Addington (and Martin, and the briefer, and Grenier, and more), but one at a time here. In fact, eliminating one per month will clear this up by next January.

Or, if Grossman *did* highlight it as sensitive to Armitage, WTF is going on? Why was Armitage leaking and forgetting to tell Fitzgerald about Woodward? If I were Libby's attorney, I would love to see how Armitage and Grossman addressed that.

Tom,

Please, if you want people to take you seriously (and before anybody asks, I don't particularly want people to take me seriously, I like playing the harlequin), you will have to do better than that. Libby calls Grossman up and wants info on the "unnamed former ambassador". Grossman talks to Libby multiple times (late May and early June 2003) about Wilson, culminating in a White House briefing. Libby gets faxes, personal briefings from the CIA, talks about Plame with his boss, talks to his subordinates about Plame, and chats up Fleischer. And then he forgets about?

Tom

My guess - Novak and Armitage are both likely witnesses at the upcoming trial and have been asked to keep quiet; Armitage has every reason to be cooperative with Fitzgerald on that point and no reason to explain his cooperativeness.

You say that in spite of the fact that Fitzgerald has said he won't call Rove and Armitage? That would suggest that Rove and Armitage have recently become witnesses and Fitzgerald has informed Libby accordingly (but I thought you didn't buy my Rove as Big-C cooperation theory?). That also suggests that Armitage could say anything to help Fitzgerald's case, which I doubt, since it's just a perjury case and doesn't deal with the bigger leak. I think it most likely that Fitz has asked them to shut up because if they don't it'll help Libby confuse the jury. Though I also think it possible that Fitz is saving Rove, especially, in case he issues any more indictments (such as an IIPA against Scooter.

One theme the Libby team may be considering is this - presuming that Armitage leaked twice, and presuming that he learned about Plame from Grossman and/or that INR memo, isn't it plausible that Grossman did not exactly emphasize to Armitage the deeply-fraught significance of the Plame tidbit?

Lots of presumption there, not supported by the claims of a former State Department official, who may or may not be named Armitage, who said:

One former State Department official, who because of the sensitive nature of the case asked not to be named, said that the information on Plame in the memo was sparse, but that her identity was known through other means in much of the intelligence community, suggesting that the memo might not have been the way her name spread among government officials — and the media. As the former State Department official recalled, the memo identified Plame only as "Wilson's wife" — it did not give her first or last name, and it did not mention her undercover status.

"The Niger uranium issue was a huge argument within the intelligence community for over a year before the Novak column," the former official said. "So all the ins and outs of Niger uranium were the subject of endless meetings and discussions and food fights among people in the intelligence community and all the details of it were well-known."

(Armitage is named in the very next line.) Besides, I think it much more likely that Armitage knew of Plame's identity before Grossman, not least because he was a central player in those food fights.

WO

Unless I'm mistaken, I think TM is speculating on what Libby might do, not what he believes to be the case. Remember, TM's first response to the implausibility of Libby's story was to suggest it might work better as an insanity defense.

I've always thought that Libby's defense would be helped if he checked in to a substance abuse clinic.

Now ask me about the Yankees


Oh, and WO

I'm well aware of that something bigger. But even if I am right, it's totally unclear whether Fitz would pursue the Constitutional questions to press the issue.

Excuse me, but Ken Starr spent more than $40 million and that was after Senator Al D'Amato spent $30 million and does not include any calculation of the cost of the whole legislative branch being pre-occupied in a bogus impeachment proceeding. No, I'd say we have many more millions to go to come close on something far more important.

emptywheel,

There's no constitutional problem indicting the VP. It would make an interesting symmetry. The last VP to be indicted was the last VP to shoot somebody while in office.

Admitting that is is Armitage sort of kills the story line.

It certainly complicates it, which for the purposes of Isikoff et al might be to kill it - though Isikoff has hardly been a huge advocate of the story line you, Tom, are probably thinking of - but in the real world, as I've been saying for a while, it's perfectly plausible that there were a lot of different sets of actions around the Wilsons, and that one of them was a White House, or OVP, effort to go after Wilson with all they had, including the wife's CIA connections. And whatever your commenters want to believe, it remains the case that Rove was one of Novak's sources, and Libby knew it as well (though the official story appears to be that Rove talked with Novak, but didn't think he was a source. Whatever.).

Engaging thread, and interesting to hear, EW, that paid trolls have been posting recently. I come to this story like a bee to honey -- a complete sucker for a good story. Sadly, no money in my motives 8-p

By all appearances, Libby obtained his position by studiously serving a secretive, dark-hearted man with considerable skill at institutional in-fighting. Nothing known about Cheney suggests that he would place his interests in the hands of anyone not wholly bent to his commands. Therefore, TM's conjecture about the notion of Mr Libby "running off rails" strikes this reader as highly implausible.

You offer news of yet another reporter entering this convoluted narrative...? Oh dear, I fear that I'll lose yet more hours sucked into the blogscreen to see what happens next.

By 'paid troll,' emptywheel refers to someone trolling this site who appears to receive compensation for writing conservative articles. (I'm proud of the bust.)

I think it most likely that Fitz has asked [Armitage and Novak] to shut up because if they don't it'll help Libby confuse the jury.

Good point - why do I think Novak will be a witness at the Libby trial? Actually, I didn't think about it at all - I was more thinking that, until last week, Novak was operating under a general "STFU" request from Fitzgerald.

And maybe he still is - obviously, confusing the jury is a key goal for the Libby team, so Fitzgerald will want to prevent that.

But if the general consensus is that neither side is likely to call Novak, why isn't he talking? And is there any chance of a "Hey, Bob, open up" campaign catching fire? The public's right to be kept in the dark, indeed.

Lots of presumption there, not supported by the claims of a former State Department official..

Good point, but one of my presumptions is pretty minor (namely, that Grossman mentioned Plame to Armitage) - regardless of other ways by which Armitage may have learned about Ms. Plame, the Libby defense would love to know whether Grossman emphasized her role, or mentioned it in passing, since Grossman may have had a similar exchange with Libby.

I've always thought that Libby's defense would be helped if he checked in to a substance abuse clinic.

I once floated a Claritin/Viagra weird interaction defense, but no one really bit. (And no, I do not speak from experience, but ask me about DayQuil. And stand back.)

...paid trolls have been posting recently Where do I sign up?

And yes, how about them Yankees? (I have to let go...)

Thx, Quicksilver. I think you are rightly proud of your troll bust. I assumed (erroneously) that some of the Libby 'defense fund' $5-million-and-counting was being used to fund trolls. Summer Internships in Trolling wouldn't surprise me these days.

Thx for setting me straight. Although I'd read that thread, I must have done so prior to those comments, so appreciate the heads' up.

Tom

Given Novak's most recent public comments on this case, in which he was anxious to prove that he hadn't taken the fifth, I think Novak was, at one point, in some legal jeopardy. So I think he is silent for the same reason Rove is--to avoid antagonizing Fitz.

And, sorry, they're not going to pay you, you show too much independence of thought.

William: Actually Agnew also was criminally charged -- technically I believe he was charged by a "criminal information" as he waived a grand jury indictment as part of his plea bargain. Details here So he's the most recent Veep to be criminally charged -- and he was charged by the feds in Maryland, whereas Burr was indicted by two states.
I think we've been here before, but just to reiterate, there is a pretty broad consensus that the Vice-President can be indicted while in office, while the president cannot be. Bork came to that conlcusion when he was the SG, when answering the question re Agnew. This also was the view of John Adams and Oliver Ellsworth during the debates over the Constitution (Ellsworth went on to become Chief Justice).
Thus, there is powerful historical precedent on the side of the indictability of a sitting VEEP as well as persuasive analysis (the considerations underlying the ide that sitting president can't be indicted just don't apply to the VP, although perhaps Cheney would argue otherwie, given that he isthe real president here). The idea has never been tested in the courts, however.

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