The Off the Record Club Weighs In

by emptywheel

Say, does anyone remember the Off the Record Club? It was one of the most interesting details revealed at the Libby trial--that there's this group of GOP-lobbyist-hacks who meet monthly and serve as an on-call damage control group for the Republicans.

But [Richard] Hohlt's more significant role may be his leadership of a secretive social group of GOP heavy hitters and, occasionally, White House officials, who convene to smoke cigars and mull over politics. The group's name: the Off The Record Club. Hohlt is the club's "keeper of the flame," says one participant who, like others contacted for this story, didn't want to be named because it violates the group's rules. Each month or so for more than 15 years, Hohlt has booked a room at a posh Washington hotel or restaurant and invited the guests for dinner. Among the regulars, according to three participants: fellow lobbyists Ken Duberstein, Charlie Black and Vin Weber. Rove and White House chief of staff Josh Bolten "have both attended these meetings on occasion," says a White House spokesperson.

[snip]

The club, participants say, helps the White House with damage control—they prodded GOP pols to back the president's post-Katrina cleanup—and thinks up ways to get the party's message across to the press. [my emphasis]

I haven't forgotten what the Off the Record Club is. I particularly remember that there is a good deal of circumstantial evidence thatthe leak of Plame's identity got laundered right through the group. Ken Duberstein set up the meeting between Bob Novak and Richard Armitage and then, when the shit started hitting the fan in the fall, he made some kind of obstructive call to Bob Novak. And Richard Hohlt seems to have pressed Novak to write a story on Plame; once Novak wrote that story, Hohlt gave a copy to the White House, three days before the story's publication. Right there, right at the heart of the leak case ... remarkable. You might call it the "Leak in a Box Club."

Equally remarkable is the way that the country's two leading newspapers seem to have forgotten all these details--particularly the detail that one shouldn't give an Off the Record Club member prominent copy in an article about the crime their colleagues may well have facilitated. It just seems like basic blogger journalistic ethics, after all, that you don't go to a Crips member to find out his opinion on a murder committed by another member of the same gang. These guys, like any other gang members, are simply going to defend the gang.

Well, here's the NYT providing space to let Off the Record Club member Charlie Black argue that Bush's commutation decision was measured.

“I think he sincerely believed that Scooter was not shown proper justice,” said Charlie Black, a Republican strategist close to the administration. “We can get into the whole definition of justice versus mercy, but the point is the president didn’t say justice wasn’t done, he just didn’t think the sentence was fair and therefore he showed mercy.”

[snip]

Mr. Bush comes at the decision a weakened leader, with his public approval ratings at historic lows for any president, his domestic agenda faltering on Capitol Hill and his aides facing subpoenas from the Democrats who control Congress. Those circumstances offer him a certain amount of freedom; as Mr. Black said, “He knows he’s going to get hammered no matter what he does.”

And here's the WaPo letting Off the Record Club member Vin Weber argue that Libby should have been pardoned rather than his sentence commuted:

Vin Weber, a conservative lobbyist and adviser to GOP presidential candidate Mitt Romney, said he was puzzled by Bush's deferring a decision on a pardon, given what Weber described as the overwhelming consensus in Republican political circles that Libby should be pardoned.

"We seem to have decided that we are going to prolong this thing as long as we can, which is drag this into the presidential election," he said. "I don't understand why. I don't know what their thinking is. . . . No Republican wants this issue to be alive in the next election."

Full disclosure: I was interviewed for one of these stories. I made the argument--as I have elsewhere--that this constituted obstruction of justice. You probably don't see that viewpoint reflected in either article, huh? Admittedly, I've eaten dinner once with the Wilsons, appeared on two panels with Joe Wilson, and had a nice chat with Patrick Fitzgerald once about playing rugby at Amherst. So I guess that makes me biased and therefore it's reasonable that the article in question left out my standpoint entirely. I'm so glad the club members of two people who are intimately involved in this crime got my column space instead--it's only right after all! Call it good reporting.

Comments

[Ishmael]

Blogger ethics panel!!! STAT! :)

[P J Evans]

And the MSM argues that bloggers are lacking in ethics? What are they using, because I'd like to either ban it or make it a mandatory food additive?

(We're starting to see the 'forgive and forget' message being put out in various locations. I told one of the people going for 'forgiveness' and 'get along with them' that the last couple of times (not counting Clinton) we did that, the criminals were back in government a couple of presidents later. No. Not again. Never again. They did the crime, they can f*cking well do the time.)

[scav]

Hey, Walton's shown up - IOAG (I'm only a geographer) but this looks handy. Legal Confusion Follows Libby Decision

[Woodhall Hollow]

A Leak in a Box Club!" LOL. Rivals the Amici Illuminati!

[Frank Probst]

We've heard a lot of talk about Democratic reaction to Bush's obstruction of justice. Where's the Republican reaction? I haven't seen a quote from a single sitting GOP Senator or Congressman yet. What gives?

[Boo Radley]

Great catch scav.

[spud]

Could someone please help with this question:

Fitz said that Libby threw sand at the investigators, and there remained a cloud over the VP. The argument has been that Fitz couldn't go further in the investigation because of Libby's lies.

The other two leakers were Armitage and Rove. Why wasn't Fitz able to penetrate further through these two? Was it ever revealed who gave these two Plame's identity?

[Dismayed]

It's interesting how many Republicans are crying about how they don't understand why Libby wasn't given a full pardon - Clearly they don't read The Next Hurrah!

I guess these boobs truely don't understand that their P and VP are crooks. With all the pressure form the right, I'm sure Bush would have given a full pardon if he could have. Seems like the clearest proof of all that Bush is obstructing justice with this action.

He didn't do it for the wingnuts - they're pissed - He did it for himself and his dick.

[Anon]

Rather than spend time pointing fingers at what doesn't appaer to be criminal conduct; how about the DNC developing the same kind of thing?

Just an idea to focus some energy in a construtive direction. I'm tired of the DNC whining and reacting to the GOP. When is the DNC going to lead, established the agenda, and run with it?

[Canuck Stuck in Muck]

Dear Anon,
I understand your exasperation. However, I don't think lowering ourselves to their level is a way to get even.

[JohnJ]

I love it! MTV!

"Did Paris Hilton And Lil' Kim Get It Worse Than Scooter Libby?"
link: 'http://www.mtv.com/news/articles/1564010/20070703/index.jhtml'

At the top of Google news!

Do ya think the rest of the country may be finally be waking up?

[Elliot Ness]

EW

I'm so pissed I can't see straight. I can't adequately address in writing all that's running through my mind.

I had a situation where a new Ass't State's attorney was appointed to prosecute several of my cases. I hated the son of a bitch because he was an incompetent political hack and he hated me because I knew he was incompetent.

To make a long story short, he dismissed all of my cases as well as all other cases where I was a witness. Needless to say many of my brethren advised him of his peril and as a result he started a bogus investigation of me.

Took me two years and several thousand dollars to clear my name. I don't want to hear one word from Libby or his noise machine about a political prosecution, cause I damn well know one when I see one, and he sure as hell wasn't a victim of one.

Pity the poor law enforcement professionals who worked their ass off on this case and to whom Bush just gave them the finger.

[JohnJ]

Apologies for that last sentence, I should read it before I send it.

[tekel]

here's some inspiration. Sure it's san francisco, but that's an MLB ballpark which I'm sure some of you will recognize. Sure would be neat to see a screencap of that sign if anyone was tivoing the game...

http://freewayblogger.blogspot.com/2007/07/from-usa.html

[lolo]

HA! 'leak in a box', what a story. I would like to hear more about this topic ew. Are they part of the Aspens? The Armitage, Woodward angle always bugged me. It was always such a red herring spliced in to take the heat off scooter. The piece of the puzzle that doesn't fit I bet it came in the leak box.

[emptywheel]

spud

BC OVP ran the leak. There's no place to go with Armitage, at least. Rove, maybe, but I think it brings you right back to Libby.

Fitz didn't just prosecute Libby bc he was easy. He prosecuted Libby because he was standing in the way of the clear culprit.

[Gary]

Leak in a box? One: Cut a hole in the box.

The Washington press corps is beyond repair. NYT and WaPo are the worst, together with the cable nets.

Marcy, no kidding, you need to get a press agent, stat, to make you as available to comment as the neocons always are. You're obviously on the right track, but we need more of you, and people like you, on TV to counter the hacks and liars.

[Woodhall Hollow]

The Dick leaked in a box.

(sorry couldn't resist, slinking away now!)

[pseudonymous in nc]

Ah, but Marcy, you forget that Charlie Black and Ed Rogers and Vin Weber and Ken Duberstein and Bill Kristol run the country, without the disadvantage of elections.

[eyesonthestreet]

After reading the NYTimes article about Walton from scav above, now I know who advised Bush (see end of last thread) it was Regent U law school interns, of course, but they didn't mean to....

[Griffin]

Dear EW,
In the previous obstruction of justice post you had an exchange with RH about doing video broadcasts. You said the biggest problem was you live in Ann Arbor and politics TV is in Washington. I taped them taping you in DC a couple of times. They did a great job, but their production equipment was not very expensive and their tech skills not super-advanced. There must be 50- okay maybe only thirty- people with comparable skills and equipment in Ann Arbor who would be very pleased to do the taping and production. PTV would probably host or post any tapes you sent them too.
I would have emailed you this note but couldn't find your address. If you think doing some videos would be helpful, I could help find tech people to do them. [email protected]

[AZ Matt]

The Off the Record Club, hmmm, more like the Adult Diaper Club since they can't hold anything.

[eyesonthestreet]

Marcy- There where a many empty seats at that Snowjob presser today- I can only imagine how you would have made him squirm.

[johnny pee]

Jeez, this just gets better. "leak in a box club". Are they real expensive? EW spotlight more.

[Slothrop]

How can it be obstruction of justice when Black says it's not about justice but mercy? The President didn't say justice wasn't done, he just wanted to show mercy. Therefore, it's not obstruction of justice.

What a pleasant way of thinking about it. Not much mercy for Valerie though, huh?

I heard Joe Wilson on the radio today -- he corrected an interviewer who referred to "Valerie Plame." Joe jumped in and said, "Her name is Valerie Wilson."

[bmaz]

Jeepers EW, I detect some bitterness there. But not enough. WHERE IS THE OUTRAGE!

[Quzi]

Quote of the Day: "He did it for himself and his dick."

Sums it up for me!

[desertwind]

Amazing isn't it, the similarities between the WaPo & NYT stories (and that photo of Bush Walkin' Alone...). Thanks so much, Marcy. They were buggin' me, but I wasn't completely sure why. Now I know.

[flotron9]

Close the Pentagon.
Peace now.
Stop fascism.
Turn the page.

[dougR]

So I'm sitting here reading Marcy with one eye and checking to see who's on Charlie Rose with the other, and lo and behold, there on the screen, it's Duberstein himself "explaining" the Libby commutation to a rather obsequious Charlie, who's listening respectfully and pretending to pose tough questions, as is his wont with the Goopers he has on the program.

Thanks to Marcy's fortuitous post, I was able to fire off an INFORMED e-mail to Mr. Rose (via his website) calling him on booking such a partisan hack, and asking when he was planning on an informed, in-depth program on the Libby commutation from OTHER than a GOP viewpoint.

I used to see stuff like this on the tube all the time and think about writing a note in protest, then going "Ah, fuck it". NOT ANY MORE!

Also, if y'all haven't read Kung Fu Monkey's disquisition on the culture of shamelessness in the GOP, go read. It's invaluable for understanding exactly what we're up against.
Here's the link:
http://kfmonkey.blogspot.com/2007/07/l33t-justice.html

[pow wow]

My crystallizing focus for a way forward if our Legislative Branch (or at least the House of Representatives) would only roust itself, and its (our) inherent powers, to life:

I thought Bush and Rove had successfully insulated themselves from any (further) Libby fall-out, last June. I figured they'd let Cheney's guy go down, and Cheney with him, if need be. I'm now convinced by Bush's panic to commute Libby's prison time before he served a day that Rove and/or Bush are still very much exposed to criminal/political jeopardy from the information they know Libby harbors about their involvement in the outing of a covert CIA officer and its subsequent cover-up. [EW's point about and analysis of the June 9th evidence (that came out of the trial) of a Bush-initiated string of events, as well as the mysterious vanishing Libby defense that was previewed in opening arguments and then promptly retired, undergird the impression that Bush gave yesterday with his hasty, otherwise-illogical action.]

We finally have a point of the spear with which to open impeachment hearings - a subject of inquiry, out of all the possible subjects to choose from, that particularly targets the men of bad faith at the very top of the Executive Branch, who have been operating our government in an isolated, secretive fashion, and can therefore be isolated and targeted for intense Congressional investigation with regard to a matter of national security [which was either a literal crime or at best 'recklessness' and abuse of office with regard to a matter of grave import that has dismantled at least one of our rare and valuable national security spy assets]. A subject that is also intimately connected to the war crimes of this administration in Iraq and the sales job that they used to lead us there. In other words, the outing of Valerie Wilson and the Bush/Cheney involvement in the Niger-Uranium Fraud should be the opening salvo for impeachment hearings by the House Judiciary Committee. Why?

Because:

An impeachment proceeding can access years of grand jury testimony and evidence already compiled by the Special Counsel's team (thus end-running Pelosi's lame 'there's not enough time' argument). Coordination with the Special Counsel and the Wilsons to safeguard the Wilson civil suit if Judge Bates lets it proceed, and the Special Counsel's ongoing defense of the Libby conviction would need to be undertaken by Congress if they pursue access to this evidence. While remembering, and accounting for the fact (if possible), that there are corrupt Republican moles spying for the Executive Branch (including the civil suit defendants) on all these Congressional committees (and I don't just mean staffers). Very strict, enforcable rules of non-disclosure as appropriate would need to be formulated by those running the investigation.

Henry Waxman and his Oversight Committee have apparently already made great progress on the Niger-Uranium Fraud, largely behind closed doors. His evidence could be rolled into the evidence about the outing of CIA Officer Wilson to kick-start the process.

Gonzales should probably be ignored for now. He's a known liar, subservient to his bosses, his crimes are ultimately Bush's crimes, and Gonzales will eventually slink away when his role as a firewall no longer works. We need to target the bosses: namely Bush, Cheney, and Rove. Perhaps starting with Addington and Novak and a request for their testimony to Congress about their involvement in the outing of Valerie Wilson. When one or both refuses, if this is an impeachment hearing, we go to court to enforce compliance [without concern for whether a legislative remedy will be the result of the hearing, as would be true for non-impeachment, regular oversight hearings]. If everyone pleads the Fifth - we select our immunity target(s) with an eye to impeaching Bush and Cheney and letting the others walk (which at this point they seem to be doing anyway).

Other than possible complications to Fitzgerald's ongoing work (if any, besides Libby's appeal), or the Wilson civil suit if allowed to proceed (which we should soon know), what are the drawbacks to this scenario? [Assuming a very, very limited, targeted amount of any Congressional immunity is given.] We have pre-investigated potential crimes which were unable to be prosecuted or proven under criminal statutes, but which Congress can easily determine to be abuse of power, misuse of office, dereliction of duty, and similar "high crimes and misdemeanors" sufficient to impeach those involved but still holding offices of public trust in our Executive Branch of government.

Two lower court decisions of note have upheld congressional access to grand jury materials in aid of that branch's constitutional power of impeachment. In Grand Jury Proceedings of Grand Jury No. 81-1, 669 F. Supp. 1072, 1074-75 (S.D. Fla.), aff'd, 833 F.2d 1438 (11th Cir. 1987), the court held that the House Judiciary Committee was entitled to receive the record of grand jury proceedings in furtherance of its impeachment investigation of Judge Alcee Hastings. Although the committee's access to the materials was separately justified on the basis of Fed. R. Crim. P. 6(e)(3)(C)(i), the court held that the disclosure was also justified on the basis of, inter alia, the Impeachment Clause. U.S. Const. art. I, § 2. See also In re Report and Recommendation of June 5, 1972 Grand Jury, 370 F. Supp. 1219 (D.D.C.), mandamus denied sub nom. Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 1974) (district court's decision granting the Watergate grand jury's request that its report on the matters it investigated be submitted to the House Judiciary Committee, upheld by court of appeals in denying mandamus relief).

These decisions should be read with some caution because the disclosures of the grand jury materials at issue were directly related to impeachment proceedings -- which have been viewed as within the coverage of the Rule 6(e)(3)(C)(i) exception -- and were undertaken only after obtaining prior judicial approval. Nonetheless, they demonstrate the courts' willingness to recognize an independent constitutional basis for disclosures of grand jury information outside the provisions of Rule 6(e). Thus, if congressional access to grand jury materials may be independently justified on the basis of its Article I power, it would be anomalous to contend that Presidential access to such materials could not be justified on the basis of the President's Article II powers.

http://www.usdoj.gov/olc/gjag.htm

Happy Independence Day, America.

[David]

Thanks, emptywheel, for providing this info. Very helpful insight. I knew nothing about this group, although I know who these individuals are.

dougR, Charlie Rose continues to disappoint, doesn't he? I will never forget his interview with Norman Mailer on Iraq. He asked Mailer why we were going to war, and then said "And don't tell me it's about the oil." Most pathetic single moment I can remember in the story of Charlie Rose as the host of a major PBS program.

[Seamus]

Check this out, from DKos-

It appears that President Bush made a serious mistake in his Commutation Order. As justification for invalidating Libby's prison sentence, he pointed out that Libby would still be subject to two years probation, a harsh sentence, Bush says (rolls eyes).

Oops!

As Judge Walton just noticed, it looks like Libby won't even serve probation, since, under the federal system, "supervised release," as it is called, can only follow an actual prison sentence.

Talk about incompetence. Bush can't even get Obstruction of Justice right!

New Court Order here (warning -- pdf):

As a special bonus, make sure you check out footnote 1. Hahahahahahahahaha!

link

[TheGris]

It's disgusting, despiccable, and predictable that you weren't quoted in those articles.

I would love to see a subpoena-powered investigation of the media's Bush-enablers. Top to bottom of these media companies. The drooling dolts of the DC "press corps" are just following orders...

[bmaz]

Pow Wow - Very well put, and I agree completely. Prior to this brazen act of obstruction, I had been harping for initiation of impeachment proceedings against Gonzales. They simply must be started against someone in the administration because, without the investigatory powers available under impeachment, the administration can pretty effectively stonewall, obstruct and otherwise run out the clock by fighting supoenas etc. through the court system and it's various levels. After yesterday, I agree with you that the impeachment should be moved against Bush and/or Cheney. But we simply have to get going on one of the three so that further substantive investigation is not stymied.

[Rayne]

Oh, I haven't forgotten the OTR Club. They've been busy.

Ken Duberstein has been fretting about executive privilege.

Charlie Black has also been fretting, but about McCain's campaign funds.

Vin Weber has been getting as much press in his own name as the candidate he's supporting -- and now a foreword to his credit on a new terrorism novel.

But Richard Hohlt has been ominously quiet; off the record, so to speak.

[radiofreewill]

Just like EW says - the Off-the-Record-Club laundered Valerie's identity into the press. Here's how they might have done it:

http://www.dkosopedia.com/wiki/Plame_Leak_timeline

The Pincus Article comes out June 12, prompting Armitage to request a copy of the June 10 INR Memo, which links Joe with his CIA wife.

Armitage gossips about Valerie's identity the next day, June 13, with Woodward. This is taken by the FBI to be unintentional, and not an IIPA violation.

Armitage gossips to his 'political advisor' [Daddy], Ken Duberstein, that he spoke to Woodward about Wilson's wife.

Duberstein tells Rove.

Bush, Cheney, Rove and Libby then plan the Wilson smear, and the intentional 'outing' of Valerie.

The OTR Club swings into action: Their missions - 1) put Armitage and Novak together, and have Armitage give a repeat performance of the Woodward conversation. 2) Have Novak publish an article that smears Wilson and 'outs' his wife.

BushCo was anticipating Joe going public, which would be the trigger for the smear campaign. The OTR Club was on stand-by.

Joe's Op-Ed on July 6th.

Duberstein opens Armitage's door to an interview from Novak.

Novak arrives on cue and uses Joe's Op-Ed to punk the needed info out of Armitage.

Rove confirms to Novak the next day. Libby discloses the 'source' document for Armitage's gossip - the INR Memo - and Novak writes his piece.

On July 11, OTR Club member Richard Hohlt receives an advance copy of Novak's July 14 'outing' column - and sends it to Rove.

Rove and Libby get/give whatever blessings are needed, and the Smear/Outing column appears on the 14th.

So, Rove capitalized on knowing that Armitage was imminently dupe-able, and INTENTIONALLY had Armitage's big bald head figuratively slapped with prompts by Novak, knowing that Armitage would kick-out the needed info like a Pez dispenser, just like he did for Woodward.

Armitage was the unintentional gossiping patsy. Rove's using him intentionally to gossip Valerie's identity to Novak was an IIPA violation.

It was the OTR Club that did the 'dirty' work - laundering Valerie's identity to the press and jockeying Novak's Article through to publishing - all coordinated through Rove with Libby, with enough time to work out edits and get final approval from 'upstairs.'

[*xyz]

pow wow - Your analysis is cogent and compelling.

I agree with bmaz that the time is now to focus on a single nexus of wrongdoing and commence with impeachment proceedings with all deliberate speed.

The Bush administration has hithertofore benefitted from the fact that their wrongdoing has been so diverse and multifaceted that it actually formed a nebulous protective cloud. This cloud divided our attention among various criminal incidents and prevented our politicians and leaders from focusing like a laser on any one specific instance that could easily be (i) shaped into a narrative for the public and(ii) presented as an impeachable offense.

But now Bush, by obstructing justice in the Libby case, has given us an opening, and pow wow (among others) has given us the beginnings of a road map for how to proceed. We must do so with discipline and focus. I look forward to seeing what happens next.

[Dismayed]

Simply amazing how the press has run through the motions of 'covering the story' while in reality covering only half of the story, not getting to the real reasons for commutation, and generally supporting the liars lie.

We all know the liars lie, first never give a lot of details, and second if you are on the edge of getting cornered admit to something in the neighborhood, but not the real lie you're trying to protect.

The press is not at all on our side here people, they're working for the neocons. Congress is all we have, and I'm just not sure they are going to move forward. I think they fear the press too much and are going to angle toward the '08 elections. I think they will err on the side of caution.

Too bad they don't seem to be able to get it through their thick heads that people want justice and will support them in droves if they stand up to these thugs. Impeachment is the correct move morally and politically!!! Come on, Congress. Didn't you ever play baseball. If you're going to strike out, strike out swinging!

Don't stir the pot - FLUSH the pot. Grab the news cycle and keep grabbing it. Push the envelope, sell some papers. Do your jobs!

[Frank Probst]

Random thoughts:

1. Walton's actual order is here: http://sentencing.typepad.com/sentencing_law_and_policy/files/libby_3583.pdf

Maybe it's just me, but footnote one seems to be dripping with sarcasm to me. It also seems to almost beg for Fitz to file a brief saying that the President has the legal authority to completely ignore Justice Department guidelines and offer clemeny to his former aide and personal friend for a conviction in a case in which he (the President) was personally involved. Fitz can then quote James Madison as saying that when an abuse likes this occurs, the President should be impeached and removed from office.

2. The douchebag of liberty has a "new" column up at WaPo with the same old talking points. Lots of fingerpointing at Armitage. I really wish Armitage would just lose it at some point and start screeching, "That goddam bitch set me up!" The DOL also gets in a few digs at Colin Powell, too. I'd really like to hear his candid take on this whole thing, but I'm not holding my breath.

[desertwind]

OT, sort of, but

Am I crazy?

When Fitzgerald said in closing argument, "There's a cloud over the vice president.... We didn't put that cloud there. That cloud's there because the defendant obstructed justice....", this was in response to Ted Welles' argument that Fitz had put a cloud over Libby and the administration by prosecuting this case... Right?

I can't find this is Welles' closing. Was it something he (or surrogate) said outside of court to the press?

[Jodi]

yes

[Katie Jensen]

From the beginning, and even since all these other issues have come out, my gut instinct has been that there is only one crime that has the legs to walk Bush out of the office. Unfortunately, it has taken such a long time for all the details to come to the surface.

Minimize, deny and blame is the language and behavior of perpetrators.

Our administration is clearly made up of them and our country will not be safe by turning our heads and waiting for them to leave. They have to go and they have to be prosecuted.

[eyesonthestreet]

what the IIPA says:

IIPA, Intelligence Identities Protection Act, and is documented here:

"Section 421. Protection of identities of certain United States undercover intelligence officers, agents, informants, and sources

(a) Disclosure of information by persons having or having had access to classified information that identifies covert agent

Whoever, having or having had authorized access to classified information that identifies a covert agent, intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than ten years, or both.

(b) Disclosure of information by persons who learn identity of covert agents as result of having access to classified information
Whoever, as a result of having authorized access to classified
information, learns the identify of a covert agent and
intentionally discloses any information identifying such covert
agent to any individual not authorized to receive classified
information, knowing that the information disclosed so identifies
such covert agent and that the United States is taking affirmative
measures to conceal such covert agent's intelligence relationship
to the United States, shall be fined under title 18 or imprisoned
not more than five years, or both.

(c) Disclosure of information by persons in course of pattern of activities intended to identify and expose covert agents
Whoever, in the course of a pattern of activities intended to identify and expose covert agents and with reason to believe that such activities would impair or impede the foreign intelligence activities of the United States, discloses any information thatidentifies an individual as a covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such individual and that the United States is taking affirmative measures to conceal such individual's classified intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than three years, or both.

(d) Imposition of consecutive sentences
A term of imprisonment imposed under this section shall be
consecutive to any other sentence of imprisonment.

U.S. Code as of: 01/19/04
Section 422. Defenses and exceptions

(a) Disclosure by United States of identity of covert agent

It is a defense to a prosecution under section 421 of this title
that before the commission of the offense with which the defendant
is charged, the United States had publicly acknowledged or revealed
the intelligence relationship to the United States of the
individual the disclosure of whose intelligence relationship to the
United States is the basis for the prosecution.

(b) Conspiracy, misprision of felony, aiding and abetting, etc.

(1) Subject to paragraph (2), no person other than a person
committing an offense under section 421 of this title shall be
subject to prosecution under such section by virtue of section 2 or
4 of title 18 or shall be subject to prosecution for conspiracy to
commit an offense under such section.

(2) Paragraph (1) shall not apply

(A) in the case of a person who
acted in the course of a pattern of activities intended to identify
and expose covert agents and with reason to believe that such
activities would impair or impede the foreign intelligence
activities of the United States,

http://caselaw.lp.findlaw.com/casecode/uscodes/50/chapters/15/subchapters/iv/toc.html

(another viewpoint for possible prosecution- Espionage Act:
http://writ.lp.findlaw.com/commentary/20050815_klarevas.html)

So, as I understand it, the CIA asked the Justice Dept to look into the public disclosure of one of their agents after Novak's article was published. It looks like 422 (a) lets all of the reporters off the hook, but I do not understand the other exceptions, since IANAL, so can someone please explain those exceptions, what do they mean in this case?

[windansea]

Conyers yesterday:

"In light of yesterday's announcement by the President that he was commuting the prison sentence for Scooter Libby, it is imperative that Congress look into presidential authority to grant clemency, and how such power may be abused," John Conyers said. "Taken to its extreme, the use of such authority could completely circumvent the law enforcement process and prevent credible efforts to investigate wrongdoing in the executive branch."

Conyers, speaking against a resolution condeming Clinton for pardoning terrorists.

“Mr. Speaker, I rise in strong opposition to what is clearly a politically motivated and totally senseless resolution. We are a Nation of laws, and if any matter is abundantly clear by our Constitution, it is that the President has the sole and unitary power to grant clemency. Is there any Member that does not understand that? Every President has the sole and unitary power to grant clemency…Now the reason that he has the power to grant clemency is that it is that the President is uniquely positioned to consider the law and the facts that apply in each request for clemency.”

I am so looking forward to the hearings next week :)

[phred]

pow wow, bmaz, & xyz -- just want to add my two cents to say that absolutely the time is now. Like bmaz I have been strongly in favor of impeaching Gonzales (still am) as it is the only way to remove that particular firewall to allow us to get to Bush (and Rove). However, now that Bush has given us a direct route to remove him from office (for obstruction of justice -- and bmaz, can Bush's treatment of Libby be considered witness tampering? just curious...), then the time has come to proceed against both Cheney and Bush. I agree with the earlier comment that Gonzales will likely be gone once he is no longer useful in protecting Bush.

[P J Evans]

windansea

You're missing the main point that Conyers seems to be making: Both were politically motivated acts (the commutation for Scooter and the motion to cesnure Clinton).

Do you really want everything to be done based on who you know, rather than what you did?

[windansea]

i not missing the point, Conyers was for executive clemency before he was against it, but carry on with the pretzel logic.

[JEP]

So, is this "Off The Record" club our own seret version of the Bilderbergers? How many other little clutches of cigar-chomping ugly Americans exist "off the record" and still on the A-List?

Government behind closed doors = government for special interests. If it can't be done in the light of day, they are hiding something from "We, The People."

Transparency is the only solution.

[bmaz]

Phred - I don't think this could be considered witness tampering because Scooter is not technically a witness in anything. If the thought is to extrapolate it back to the grand jury phase, it might be kind of possible to mete out a tampering charge, but you could never possible prove it without affirmative help from Libby. Bottom line tampering no; obstruction yes.

[Jodi]

i am a douchbag and won't change...

[eyesonthestreet]

bmaz-
Wouldn't it first be required to show that Pres/VP/ROVE/etc violated IIPA or Espionage Act before charging them with obstruction of justice?

And how is it, as Novak writes in his column today that Armitage did not violate those acts and was never charged by Fitz?

"Armitage was not indicted because the statute prohibiting disclosure of an intelligence agent's identity was not violated. " I posted the IIPA above, but I cannot see how Armitage was not in violation.

http://www.washingtonpost.com/wp-dyn/content/article/2007/07/03/AR2007070301521.html?hpid=opinionsbox1

[nolo]

yesterday's comments, on videotape,
by president bush were -- albeit un-
intentionally -- rather illuminating.

from his own mouth, then -- in 2:12 of
highly condensed video -- with john
dean offering the thoughtful, and
yet quite dramatic, historian's perspective. . .

the video paints a prima facie case of
obstruction -- as bush explains why he
has pre-emptively commuted one,
and only one, within-the-guidelines
sentence -- as alternatively "excessive",
and/or "too severe" -- for a convict
whose lawyers have filed no formal papers
of any kind seeking this relief from the
executive branch (while some 3,000 other now-
incarcerated convicts, formal petitioners
all, await executive action on their papers),
and while the convict's regular legal appeals
haven't been exhausted -- i.e., this is still a
pending criminal proceeding -- AND
where the president hasn't sought the views of
the special counsel, patrick fitzgerald, nor
the views of his own pardon counsel, before acting
[and has clearly ignored his father's precedents!],
ALL very persuasively -- by the absence of
any sense of regularity, order, or even
momentary reflection and thoughtfulness,
[see judge walton's latest footnote one!] in
the approach the president employs. . .

suggest an ulterior motive:

o b s t r u c t i o n.

~~~~~~~~~~~~~~~~~~~~~~

ps: confid. note to bmaz -- as to
witness tampering -- i actually think
scooter was a witness to whatever dick
cheney said on these matters in jackson hole,
and it is only a small stretch to suggest
that the vice president's june 5, 2007 press-
release (urging this result) amounts to an attempt
to keep mr. libby's mouth closed. not air-tight,
but probably -- given all the above -- within
the realm of a straight-faced argument before a
grand jury or judge or congressional committee -- an
argument that the witness. . . has.been.bribed.

~~~~~~~~~~~~~~~~~~~~~~

whew.

happy fourth, one and all -- with pecan pie
at my place, for dessert. . .

[nolo]

yesterday's comments, on videotape,
by president bush were -- albeit un-
intentionally -- rather illuminating.

from his own mouth, then -- in 2:12 of
highly condensed video -- with john
dean offering the thoughtful, and
yet quite dramatic, historian's perspective. . .

the video paints a prima facie case of
obstruction -- as bush explains why he
has pre-emptively commuted one,
and only one, within-the-guidelines
sentence -- as alternatively "excessive",
and/or "too severe" -- for a convict
whose lawyers have filed no formal papers
of any kind seeking this relief from the
executive branch (while some 3,000 other now-
incarcerated convicts, formal petitioners
all, await executive action on their papers),
and while the convict's regular legal appeals
haven't been exhausted -- i.e., this is still a
pending criminal proceeding -- AND
where the president hasn't sought the views of
the special counsel, patrick fitzgerald, nor
the views of his own pardon counsel, before acting
[and has clearly ignored his father's precedents!],
ALL very persuasively -- by the absence of
any sense of regularity, order, or even
momentary reflection and thoughtfulness,
[see judge walton's latest footnote one!] in
the approach the president employs. . .

suggest an ulterior motive:

o b s t r u c t i o n.

~~~~~~~~~~~~~~~~~~~~~~

ps: confid. note to bmaz -- as to
witness tampering -- i actually think
scooter was a witness to whatever dick
cheney said on these matters in jackson hole,
and it is only a small stretch to suggest
that the vice president's june 5, 2007 press-
release (urging this result) amounts to an attempt
to keep mr. libby's mouth closed. not air-tight,
but probably -- given all the above -- within
the realm of a straight-faced argument before a
grand jury or judge or congressional committee -- an
argument that the witness. . . has.been.bribed.

~~~~~~~~~~~~~~~~~~~~~~

whew.

happy fourth, one and all -- with pecan pie
at my place, for dessert. . .

[CaseyL]

windansea, there is an essential legal difference between what Clinton did and what Bush just did.

Clinton issued pardons. The prison terms had already been served.

Bush issued a commutation of sentence. Libby's prison term had not yet started.

As Walton's Court Order points out, "probation" cannot begin until after the prison term has at least started. That's the law, and nothing in the Constitution gives the President the power to override that law.

Not only that, but because Bush short-circuited the laws regarding probation, the Court needs to know when Libby's probation term should begin, as there are no laws or guidelines covering the situation. Should the probation begin as of the date of conviction? Or from the date of the Clemency Order? Or from the date Libby's jail term would have begun, or ended? Libby's original sentence was for 2 years of probation, following 2.5 years in jail.

So Bush's response to the Court Order could make the difference in whether Libby's probation lasts for 5.5 years, or 2 years. I think that's a pretty important consideration to Libby, don't you think?

[CaseyL]

Whoops. 4.5 years, not 5.5.

[nolo]

dag -- sorry about the double vision -- my bad.
my concention failed -- and when i reutrned,
there were two. . . soo sorry, all.

[bmaz]

EyesOTS - No. It does not have to be a definitive crime in order for one to obstruct the investigation. If it is a lawfula and proper formal investigation, it can be obstructed. Also, we must keep in mind that an IIPA violation with respect to Valerie Wilson is but one of the many crimes these rubes are covering up. It is hard to get one's thoughts around it, because it is so foreign to how we view ourselves here in the US, but the act of lying the country and the world into an aggressive war of choice, where by any estimate hundreds of thousands have now died as a result, are violations of numerous international laws that are directly applicable under our law (much as the Geneva conventions are binding on us). There are also many more individuals who have clearly perjured themselves, or at a minimum, given false statements in relation to Fitz's investigation. Including the statements by Cheney and Bush themselves is my bet. So, there are a plethora of crimes for which justice is being obstructed.

I think that the only reason Fitz did not charge Armitage with IIPA is he did not feel he had enough proof locked down on the requirement of intent. The BS about how Armitage was the only one and there is nothing on him is, indeed, BS. The DC Circuit blew that argument out of the water once and for all as to Armitage being the only "person of interest". I have been at the criminl law bit for a while, and if it had been me, I can easily say I would have charged Armitage, Novak, Rove and maybe Cheney and seen where the chips fell. I will bet that 75-80% of career prosecutors that weren't swayed by political thoughts would do the same; that is, rightly or wrongly, how things work in the criminal system. By the same token, we asked for someone above reproach, someone measured, someone who could not be accused of "witchhunting". We got that person, and he still took a beating. Fitz did exactly what he should have done and should be commended for it. But don't think for a second that simply because HE did not charge others, and other crimes, that it could not have been, and in retrospect should not have been, done. Despite my feelings in that regard, Fitz exercised his prosecutorial discretion, which thanks to Purgegate everyone now understands the critical importance of, in an admirable and respectable manner. We owe him a debt of gratitude for that. And a subpoena to the Senate and House Judiciary Committees to give him the cover to let the rest of the truth come out.

Remember how many of what we now consider seminal witnesses in Purgegate would say nothing until subpoenaed to testify? The same holds with Mr. Fitzgerald. He needs the cover to talk. I have a feeling Ms. Wheel will be talking to you about this much more very soon. By the same token, every one of us must put maximum pressure on every congresscritter that we can find, and do it loudly, in order to give them the spine and cover they need to get going. This is a chain reaction process and it is us that must start the snowball rolling. All of us, individually and collectively. The next two to three weeks are going to be critical for building this momentum. So, HAVE A GREAT FOURTH OF JULY. HAVE SOME FUN AND PONDER WHAT THIS COUNTRY MEANS TO YOU AND TO US. THEN COME OUT SWINGING TOMORROW. WE CAN DO THIS. Happy Holidays folks!

[eyesonthestreet]

thanks, bmaz, have a great 4th!

[bmaz]

Nolo - I understand the concept there, and a few other places as well; my point is that I don't think such thoughts are ripe enough yet to charge. I am going to contemplate the pie bet in detail when i get back home this weekend and recall the specifics of our bet. If I owe, I pay. (Actually thinking my bet that this could all be done before Libby would even be scheduled to surrender is the winning portion though!).

[eyesonthestreet]

oh,forgot to mention, I made "jerk chicken" for my family in honor of communtation
(No offense to Jamaica intended)

[windansea]

Clinton issued pardons. The prison terms had already been served.

wrong, he issued lots of commutations to felons that did not serve their entire terms

http://sweetness-light.com/archive/president-clintons-commutations-january-2001

in the pardon of Rich, he never served time as he ran from the law to switzerland until Clinton pardoned him

nobody is going to impeach Bush kiddies, Libby is not going to flip, sorry Fitmas was just a lump of coal

[Katie Jensen]

Notice the language of perpetrators. This is an invariant behavior when in the business of creating victims of a crime. Minimize, deny and blame. Notice the trolls and the behavior they engage in.

[nolo]

thanks, bmaz -- i agree. and as to
the bet, i thought the deal -- i can
go get it -- was that any executive
branch action would be a push bet.

[query whether this gnb 43 guy qualifies
as an executive at all, given this in-
ability to even get obstruction "done right". . .]

but yes -- i think it a push bet.

p e a c e

[jjk]

pow-wow: that is the best argument for impeachment proceedings that I have yet to read. Thank-you for taking the time to put it together.

I do have a question for ya. In your comment your show that the district courts have recognized Congress's Article 1 privilege to grand jury material while it is pursuant to an impeachment proceeding. And, they have also recognized Rule6(e) to allow impeachment committees access to protected grand jury testimony.

So, if Sen. Leahy and the "regular" Senate Judiciary Committee were to subpoena Fitzgerald tomorrow I assume it would immediately be challenged. From your experience, what do you think the chances are that the subpoena would ultimately move forward? Would Congress have any significant or special mechanisms to expedite the matter through the courts?

And now, here is the dream: the subpoena is allowed to go forward within days of its issuance tomorrow (*g*) .... and the Special Council takes his seat and reads aloud the actual GJ testimony (obviously, as scoped by Leahy's questions) right there while under oath in front of the "regular" SJC, God, and Country.

Happy 4th!

[phred]

Thanks bmaz (& nolo). It seems evident to me that Libby must have been a witness, but I take your point that one can obstruct justice without having been a witness. I appreciate the clarification. Happy 4th everyone!

[windansea]

This is interesting from Talk Left:

Lawyer Howard Keiffer, who runs the excellent BOP Watch List-Serv, to which scores of criminal defense lawyers subscribe, has the response printed below.

Shorter version: The day Libby was booked is counted as a day in custody. He served (got credit) for his one day in prison and therefore can be put on two years of supervised release.

More...

This, IMHO, is a very simple issue. Supervised Release, by statute, follows a term of imprisonment. Probation is only applicable when the sentence does not include imprisonment. Libby, contrary to various media reports, never got (and doesn't now have) Probation.

Libby was originally summonsed into Court (not arrested), but was still booked by the Marshals - probably immediately after entering his plea of not guilty. This is when (contrary to media reports) he was assigned his "prison number."

Libby, just like virtually every other defendant, receives one day of jail credit for that booking. Accordingly, since Bush commuted the sentence (of imprisonment) and stated that it would expire immediately, the statute is served - his Supervised Release follows the expiration of his sentence - one day (after commutation).

Consequently, this should be a no-brainer for Judge Walton - and all the sentencing pundits who have raised this issue. Technically, Libby must report to Probation within 72 hours of his "release" from incarceration - because of the commutation, that would mean by COB Thursday. His Supervised Release started today - July 3, 2007.

[bmaz]

Windansea - I may be wrong here, but i do not believe that Libby was "booked" per se. the assignment of a DOC number does not constitute imprisonment. I am not alone here as Regie Walton did not think this either. We probably have a little more experience than you do, but thanks for you help...

[pow wow]

jjk - Glad my approach made sense to you (and to the others who summarized it so well) - it's definitely growing on me, and I share bmaz's impatience on this score. To take a stab at your question:

I assume you mean if Leahy and the Senate judiciary committee were to subpoena Fitzgerald and his leak investigation grand jury material? If so, to quote from the link I posted above:

Rule 6(e) of the Federal Rules of Criminal Procedure establishes a "General Rule of Secrecy" providing that certain persons, including attorneys for the Government(1), "shall not disclose matters occurring before the grand jury, except as otherwise provided in these rules." See United States v. John Doe, Inc. I, 481 U.S. 102, 107 (1987). Under this rule, no attorney for the Department of Justice may disclose "matters occurring before the grand jury" to any other person, unless one of the rule's enumerated exceptions applies. The specified exceptions are set forth under subparagraph (3) of Rule 6(e) and may be summarized as follows:

(3) Disclosure directed by a court preliminary to or in connection with a judicial proceeding.
(Exception (C)(i));

An Impeachment Committee/Proceeding (which takes place solely in the House until Articles of Impeachment are actually passed) is considered a "judicial proceeding" and qualifies for one of the limited exceptions to general grand jury secrecy under Rule 6(e). But a "regular" Senate or House oversight committee/judiciary committee hearing or proceeding is not a "judicial proceeding" under Rule 6(e), and therefore the standard rule of grand jury secrecy would obviously apply because none of the 6(e) exceptions cover standard, daily oversight hearings in Congress, thus barring access by Congress to that secret evidence.

So the Senate could subpoena Fitzgerald for his non-grand jury secrets, and have a fighting chance of prevailing in court (if Main Justice fought that subpoena) if their objective was to effect a legislative remedy related in some tangible way to the subpoenaed material, but impeachment (of someone or someones for the matter that was investigated by the grand jury) is the only way for Congress to gain access to the actual, sensitive grand jury material compiled by Fitzgerald's investigation (as it should be, really - no need for shortcuts with this important, potentially-momentous evidence and procedure).

A couple of additional notes on this topic. I noticed that Digby wrote a thoughtful piece Tuesday about impeachment, which was linked at DailyKos, and received more than 300 comments. I went through the comments fairly quickly, but as far as I could tell, not one pointed out that impeachment proceedings open the door to evidence such as the grand jury material compiled by Special Counsel Fitzgerald (even though that point was important to the content of her post). [I want to emphasize that if Congress were to learn the contents and details of Fitzgerald's grand jury investigation to-date, they may very well discover that they have 80% of a very passable impeachment article or articles already in hand before they do any further work of their own.]

We seem to have a serious lack of hard facts about the process at our fingertips, as we furiously debate pro and con about impeachment; which of course weakens the quality of the debate. [I salute Kagro X here, among others, for helping to remedy that shortage of facts about process and the realities of Congressional rules with his front-page DKos posts. I hope looseheadprop can soon do another post at FDL about the key Rule 6(e) secrecy exception for "judicial"/impeachment proceedings and what that could mean with regard to the Fitzgerald investigation evidence in a Congressional impeachment proceeding.]

On the bright side, John Conyers posted a comment late Tuesday on his blog that could be read to be very much aimed in the direction we are looking:

[Frank] Rich provides context that is missed by many on this issue. As the president has seen fit to commute the sentence of Libby, and offer his criticism on the conviction, I will be seeking a public accounting of the leak history and the vice president's role in betraying the cover of Valerie Plame.

http://johnconyers.com/blog

That sounds to me like something more than just examining the process used by Bush to arrive at his Libby commutation. I sincerely hope it means what it says, because I am confident that Chairman Conyers knows all about the availability of that Fitzgerald grand jury material, should a pertinent impeachment resolution be entered in the House. Congress will simply not get another such golden opportunity served up to them on a silver platter as was served up on Monday, July 2, 2007 by Bush's egregious action. The President's action demands an equal and opposite reaction from Congress. They must make hay while the sun shines (how about in August, while the rest of the House vacations...?).

And finally, a little argument for those, like Digby I think, who fear or worry about the expected movement of the political earth underfoot should impeachment proceedings be commenced in the House. I would submit that our Executive and Legislative Branches of government are now (and have been for some time before Bush came to office) so out of whack, so out of proportion, and so dangerously unbalanced in favor of the Executive that only a shifting of the ground beneath our feet can effect a significant rebalancing toward the more or less 'co-equal' status that should exist between the two branches. But it would be a 'good' sort of earth movement with extremely positive and profound benefits to our nation and our Constitution going forward, for years to come, if executed with competence and care. [Even without knowing whether a conviction would ultimately ensue - because at least the House of Representative would be 'back in balance,' and the Senate put into proper focus as the problem, heading into an election with a disproportionate number of Republican seats at risk.]

Democrats (and Republicans who join them) must both understand what they are undertaking, if they finally undertake to defend our Constitution, and then not try to do it with half-measures: a sustained, united, principled push must be made in order to succeed, and we simply have to hope that they will be up to the job [while providing any encouragement and help we can to ensure the job is done right, and I know the blogosphere would be right there with them with flags flying], if and when they finally decide to tackle it.

[bmaz]

Pow Wow - Wonderful explanation. I have been blathering for quite some time about the extra powers available under impeachment and repetitively saying we must get the use of the same; without really stopping to explain exactly what I meant. And what you describe is exactly that. I would like to add for everyone that what pow wow has described here is but one facet of the heightened investigatory powers that are brought to bear by the impeachment process. Similar to how pow wow has described the ability to get Fitz's grand jury material, so to it makes it blatantly simple to collect any and all material from the different committee investigations, for instance the McCain material in the form of thousands of emails that people keep asking about, but that nobody ever sees. Additionally, executive privilege effectively is removed as a blocking mechanism for the administration. Also, once impeachment managers are in place, they have almost unlimited ability to designate any number of investigators to go at any number of sub-issues at the same time, all with almost unfettered power. Perhaps I will try to put a more comprehensive detail together this weekend after I return from vacation, but suffice it to say that, properly set up and run, an impeachment investigation can resemble a multi-tentacled turbo grand jury. For all those that really want to see a full and true investigation of this administration, this is the only way it is going to happen; but it will not happen without incredible pressure against the congresscritters. Pow wow is right, much of the work has already been done by disparate committees, prosecutors (ability to get Carol Lam to open up etc.) and special prosecutors, but the key is to coalesce it all into a usable and siftable whole. Impeachment is the vehicle.

[P J Evans]

windansea:
you're still not getting it. For commutations the recommendation is that the person receiving should serve at least part of the sentence. Not the entire sentence (and in most cases there's time off for good behavior). For pardons the recommendation is waiting at least five years after release.

I don't know what Marc Rich has to do with Libby's pardon. Different case, different president. (In any event, Rich wasn't protecting Clinton from the legal consequences of Clinton's acts as President. Major difference, complete failure of analogy.)

('Clinton did it too' is an excuse that should shame a six-year-old child, and it appears that many Republicans have yet to reach that level of mental maturity, since they keep using it to justify wrong actions and bad choices.)