photo: Bob Bauer (PolicitalActivityLaw via Flickr)

Glenn Greenwald has a post hitting on an op-ed Bob Bauer — Greg Craig’s replacement as White House Counsel — wrote supporting a pardon for Scooter Libby. (h/t BayStateLibrul) Glenn focuses on these passages…

Bush’s opposition has braced for a pardon and its rage at the prospect is building. To Bush’s antagonists on left, a pardon would be only another act in the conspiracy — a further cover-up, a way of getting away with it. But this is the entirely wrong way of seeing things. A pardon is just what Bush’s opponents should want. . . .Nothing in the nature of the pardon renders it inappropriate to these purposes. The issuance of a presidential pardon, not reserved for miscarriages of justice, has historically also served political functions — to redirect policy, to send a message, to associate the president with a cause or position. . . .

Libby is said to be unpardonable because the act of lying, a subversion of the legal process, cannot go unpunished. Yet this is mere glibness. . .

Now, as it happens, I didn’t write about this when it first came out. And to be honest, I’ve got mixed feelings about it. After all, Bauer did something that few people in DC were doing at the time–pointing to Bush’s own involvement in the leak of Plame’s identity.

A presidential pardon is finally an intervention by the President, his emergence from behind the thick curtain he has dropped between him and these momentous events involving his government, his policy, his Vice President. By pardoning Libby, he acknowledges that Libby is not really the one to confront the administration’s accusers. Now the president, the true party in interest, would confront them, which is what his opponents have demanded all along.

[snip]

But if the President pardons Libby, and by this act makes the case his own, he will have picked up a portion of the cost. Libby will fall back, restored to obscurity. Bush will step forward and take the lead role. He will have to explain himself; he will have to answer questions.

Even though I had already pointed to evidence showing Bush was involved–and may have even ordered OVP’s campaign against Joe Wilson in June 2003, when Bauer wrote this, almost no one would utter the possibility that Bush was somehow in the loop on the Plame outing. I think I remember being mildly grateful that someone would even point out that Bush ultimately bore responsibility for the Plame outing.

That said, I think Bauer was, on two counts, hopelessly naive. First, he suggested that if Bush were to pardon Libby, there would be a political firestorm that would exact some kind of price for Plame’s outing.

If the pardon would be politically explosive, then this is what the administration’s critics, hungering for accountability, have been waiting for.

Didn’t happen that way, Bauer, and the muted response to the commutation (in several ways worse than a pardon) was entirely predictable, not least because of the Press’ own complicity in this case.

Furthermore, Bauer predicted that Scooter Libby would not flip on Cheney.

Libby is not going to flip; he is not going to rat out Dick Cheney. He will just be the Fall Guy, the minor actor in a play that, if Bush never takes the stage with a pardon, closes soon to disappointing reviews.

Now, I have no way of knowing whether or not Libby would have flipped. He seemed willing to play the good solder, but his wife certainly seemed unwilling to have her children forgo their father all to benefit Dick and Bush.

That said, when Bush commuted Libby’s sentence, he completed the cover-up. Which is my biggest complaint about Bauer’s op-ed–his utter lack of consideration of how further details about the outing might be exposed. The commutation itself was part of the crime, yet Bauer pitched a pardon as the acceptance of responsibility for that crime.

Which is one more point: apparently Bauer didn’t consider the possibility of a commutation, which served to keep Libby quieter than a full pardon would have. Did Bauer not anticipate that? Because people on The Next Hurrah threads were predicting that route.

I have interacted with Bauer in a teeny teeny way once, and he struck me as a solid partisan unafraid to fight the good fight. I fear he will be even more competent than Greg Craig at reinforcing executive power at the expense of balance of powers, though I expect he will be less willing to put up with GOP stonewalling.

But my impression of his op-ed is that he’s simply naive about how DC worked in this particular case, naive about Bush’s ability to evade all responsibility for his actions, and naive about the press.

(Photo by roens.)

Ever since they were released last Friday, I’ve been meaning to write about the FBI notes of Dick Cheney’s interview with Plamemania special prosecutor Patrick Fitzgerald.  As is her wont, Emptywheel has already critiqued Cheney’s non-answers from a variety of angles, and multiple media reports have commented on the ex-Veep’s nearly all-encompassing amnesia, best summarized by Watergate whistle-blower John Dean (via Raw Story):

Dean told MSNBC’s Keith Olbermann that Cheney attained “something of a record” by refusing to answer or claiming to not recall the answer to 72 questions posed by the FBI during a May, 2004, interview.

“If you’ll recall, former Chief of Staff Bob Haldeman did 150 ‘I don’t recalls’ during his three days before the Senate Watergate committee,” Dean said. “This is 72 in less than three hours, that’s right up there.“

Among the many things that Big Dick pretended not to remember or to have cared about, what stood out to me were these attempts to portray his chief of staff–the now-convicted felon Scooter Libby–as merely answering media questions in such a mundane way that Cheney was barely aware of them:

Routine press inquiries would have gone to Cathie Martin, while some of those involving more substantive matters, particularly in the area of intelligence and national security, would have likely been handled by Scooter Libby.  He [Cheney] provided press guidance to both of them at times … though he can’t recall any specific advice he gave them in the May/June 2003 time frame….

… Vice President Cheney advised he was aware, prior to the unauthorized disclosure of Valerie Wilson’s identity in Robert Novak’s newspaper editorial on 7/14/03, that Scooter Libby was speaking to reporters about Joseph Wilson and his trip to Niger.  He stated that Libby was not required to clear every public statement and press contact because the Vice President had confidence in Libby’s abilities and experience in handling such inquiries….

… The Vice President advised that it was possible while on the return flight [from Norfolk, VA to Washington, DC on July 12th], that he and Scooter Libby discussed media responses to inquiries regarding Joe Wilson’s charges about the use of flawed intelligence.  Though he cannot recall any specific conversation, he would not be surprised to learn that he had such a discussion with his Chief of Staff.

… Vice President Cheney reiterated that Libby’s 7/12/03 handwritten notes look and sound like something he might dictate to Libby, but he cannot specifically recall having dictated such instructions to him on that occasion….

… The Vice President advised that if Scooter Libby had any discussion with any reporters on 7/12/03 upon his return from Norfolk, VA, he must have viewed those discussions as unremarkable, inasmuch as the Vice President was never told the outcome of any conversations, discussions or interviews with the media by Libby.

Why do I find all of this no-big-deal spin noteworthy?  Because of how Cheney attempts to explain away a seemingly damning piece of evidence–a note written in early October 2003 demanding that the White House spokesliar Scott McClellan publicly (and, as events would reveal, inaccurately) exonerate Libby from involvement in the Plame leak:

The vice president stated that the portion of his handwritten notes which read in part, ‘… sacrifice the guy that was asked to stick his neck in the meat grinder because of the incompetence of others’, was his reference to the efforts of Libby who was forced to respond to numerous media inquiries involving Joe Wilson because of the incompetence of the CIA.

Uhh, Dick, what happened to your “confidence in Libby’s abilities and experience in handling such inquiries”?  How did conversations with reporters that were “unremarkable” when they occurred in July suddenly become the equivalent of putting one’s “neck in the meat grinder” three months later?

Kind of makes you think that the real “meat grinder” must have been something else, doesn’t it?

(P.S.  I’ll do my own version of getting into the weeds on what the real “meat grinder” was — and the evidence to support it — sometime over the next few days, probably as Seminal diaries.)

Props to Marcy (@5:34).

Michael Isikoff (photo by Emilyschneider via Wikipedia)

Michael Isikoff’s coverage of Dick Cheney’s interview (h/t Leen) seems designed as much to defend his bad reporting on the CIA Leak case as to report the content of the interview itself. It’s not that I expected Isikoff to point out that Cheney refused to say things to Fitzgerald that Cheney’s own lawyer had been willing to say to Isikoff. Whatever the ethical and logical problems with reporting O’Donnell’s leak uncritically, Isikoff granted him anonymity and I fully expected Isikoff to continue to honor that pledge.

What’s pathetic about Isikoff’s coverage, however, is that he doubles down on the content of the leak O’Donnell gave to him!

Perhaps the most intriguing parts of the interview occurred toward the end, when Cheney was asked about President Bush’s decision in June 2003 to declassify portions of a National Intelligence Estimate about Iraqi WMD. The federal investigators wanted to know what he had told Libby about the president’s decision. (The declassification led to Libby’s selective leaking to New York Times reporter Judy Miller about some portions of the NIE that appeared to bolster the White House position about Iraqi WMD.)

Isikoff here repeats the several details from O’Donnell’s leak that almost certainly were invented in 2006 to fix the obvious, glaring logical inconsistencies in Scooter Libby’s story (but which, regardless of what O’Donnell said to Isikoff anonymously, remain glaring inconsistencies): the claim that the declassification occurred, the claim that it occurred in June, and the claim that the declassification led to the leak to Judy Miller. Note, the FBI didn’t ask Cheney about the date at all! The only one who mentions the day is Michael Isikoff, based on what Cheney’s defense attorney told him. And in fact, some of Cheney’s comments during this interview actually undermine that story (though his comments about the NIE declassification are thoroughly incoherent, which ought to make a reporter think twice about the NIE story itself). In other words, Isikoff’s reporting on this is actually Isikoff glossing Cheney’s interview with comments Cheney’s own defense attorney made anonymously to Isikoff at a time when Cheney had the need to shore up the inconsistencies in that part of the story.

And besides, don’t you think Isikoff should have thought seriously about what it meant that Cheney’s NIE story in his interview was so incoherent, but that Cheney’s defense attorney gave Isikoff such a coherent story?

Interestingly, Isikoff also goes out of his way to establish his cred here. He notes that Cheney claimed he had a low opinion of Newsweek.

Asked if he had authorized Libby to provide information about the issue to NEWSWEEK as well as Time, Cheney said “he could not conceive” of doing so because “he does not have a very favorable view of NEWSWEEK.”

Again, you have to wonder what went through Isikoff’s head when he wrote this. Such an unfavorable opinion of Newsweek that when they needed to plant a cover story about the NIE, they chose Isikoff? (Sort of like when OVP wanted to seed its “Libby was not the leaker” story in October 2003, they instructed Scott McClellan to go to Isikoff.) There are several ways to unpack this comment, but Isikoff revels in the claims Cheney made about Newsweek in an interview packed with lies, anyway, and in fact turns the story into “Cheney versus the press” rather than “Cheney using the press.”

Also, somewhat bizarrely, Isikoff appears to mis-attribute a comment Cheney made to the NYT. He said,

(Cheney appeared to have expressed similar views of The New York Times, although for reasons that are not clear, portions of the passage in which he discusses the newspaper are redacted.)

I believe Isikoff is talking about this passage:

The Vice President advised he had always been the subject of unfavorable press coverage by [three lines redacted] The Vice President did not recall [name redacted] coverage of the Joe Wilson matter in the week following the publication of Wilson’s editorial on 7/6/03 as being a particular problem, but he acknowledged that it was possible. The Vice President advised that he was not aware of any attempts by Libby to complain to [one line redacted] and Libby did not discuss any such plan with the Vice President. WHen asked if he had been told of any conversation that Scooter Libby might have had with [name redacted] Vice President Cheney said it was possible, but that he could not recall.

The passage shows up in the FBI notes this way:

[name redacted] unfavorable coverage–always–that week–he doesn’t recall [three letter word redacted] per se being a partic. problem–but it’s possible

[name redacted] not aware of plan or if he did talk w/him [half line redacted]

And the DOJ filing explains these passages were redacted as “names of non-government third-parties and details of their extraneous interactions with the Vice President.”

I say Isikoff must be referring to this reference because there is no other passage pertaining to journalists that is significantly redacted, and the two passages where Cheney talks about the NYT (which he gets delivered in Jackson Hole) and Judy Miller have no significant redactions around it. In fact, in an unredacted passage Cheney describes Judy Miller’s “reporting expertise,” which is a far cry from a complaint about NYT’s coverage.

The redacted passages pretty clearly relate to Chris Matthews and Tim Russert. A guy named Michael Isikoff wrote a book that explained in detail how Libby met with Tim Russert during leak week to complain about Matthews’ coverage of him and the Vice President, but later claimed that during that conversation Russert told Libby of Plame’s identity.

Now I have no idea why Isikoff made that mistake. A number of readers here recognized the reference, and they didn’t write a book on this subject. But I find it mighty amusing that in a piece that totally neglects to mention that Libby–having received orders from Cheney to leak something to Judy Miller–leaked Valerie Wilson’s identity to her, also mistakes an attack on Chris Matthews for an attack on NYT.

It’s a funny piece.

Most reporters, I would hope, would rethink the NIE cover story after seeing the utter incoherence and self-contradiction of Cheney’s comments on the NIE. But Isikoff has chosen instead to reassert the cover story and his own role in it.

But I didn’t do a very good job of explaining the consequences of that action from Cheney. Luckily, perris did that for me.

As a reminder, I’ve shown over the years that a great deal of circumstantial evidence suggests that Dick Cheney ordered Scooter Libby to leak a number of things to Judy Miller on July 8, 2003: The NIE (as Libby testified), but also the report from Joe Wilson’s trip and Valerie Wilson’s identity. From public reporting, it always looked like Cheney had constructed a firewall to defend against an IIPA violation. If Fitzgerald ever proved that Libby leaked Valerie Wilson’s identity to Judy Miller knowing she was covert, then Cheney could claim that he had insta-declassified her identity, thereby giving that leak a legal defense, however dubious. Cheney even went so far to imply to Tim Russert that he hypothetically could have declassified Valerie Wilson’s identity.

Q There was a story in the National Journal that Cheney authorized Libby to leak confidential information. Can you confirm or deny that?

THE VICE PRESIDENT: I have the authority as Vice President under an executive issued by the President to classify and declassify information. And everything I’ve done is consistent with those authorities.

Q Could you declassify Valerie Plame’s status as an operative?

THE VICE PRESIDENT: I’ve said all I’m going to say on the subject, Tim.

But Cheney’s denials of all knowledge of the Plame leak during his Fitzgerald interview would have made that defense impossible.

[Cheney] has no personal knowledge of anyone having provided [Mrs. Wilson's employment] to Robert Novak, or any other reporter.

[snip]

he does not recall having a conversation with the President about the Wilsons. [note, Cheney goes on to contradict this claim]

[snip]

He does not recall discussing Valerie Wilson with Libby prior to her name appearing in Novak’s column on 7/14/03.

[snip]

His handwritten notes on the 7/6/03 editorial about Wilson’s trip and the involvement of Wilson’s wife in the CIAs selection of Wilson was triggered by his recollection of the prior telephone conversation he had with George Tenet, wherein Tenet identified Wilson’s wife as an employee of the agency. The Vice President also indicated that he never discussed the substance of his call with Tenet with anyone prior to the publication of Valerie Wilsons identity in Novak’s 7/14/03 newspaper column. [Note, earlier he had said he may have told Libby]

[snip]

The Vice President advised that it is possible he and Scooter Libby discussed former Ambassador Wilson’s credentials for undertaking the mission for the CIA, but he has no specific recollection of such a discussion. Additionally, he does not recall any discussion with Libby of perceived nepotism associated with Wilson’s selection for the CIA assignment. [elsewhere he admits he discussed Wilson's op-ed, which he had annotated, with someone]

[snip]

The Vice President believed it possible that he and Libby discussed the Wilson trip as some kind of a junket or boondoggle, words which are to him synonymous in their meaning. However, he has no solid recollection of any such discussion.

The Vice President advised that there was no discussion of “pushing back” on Wilson’s credibility by raising the nepotism issue, and there was no discussion of using Valerie Wilson’s employment with the CIA in countering Joe Wilson’s criticisms and claims about Iraqi efforts to procure yellowcake uranium from Niger.

[snip]

The Vice President does not recall any member of his staff, including Scooter Libby, meeting with New York Times reporter Judith Miller during the week of 7/7/03, just after publication of Joe Wilson’s editorial in the New York Times. [Note, Libby has clear notes recording a discussion between him and Cheney about this]

[snip]

The Vice President advised that no one ever told him of a desire to share key judgments of the NIE with a news reporter prior to the NIEs declassification on 7/18/03.

[snip]

The Vice President cannot specifically recall having a conversation with Scooter Libby during which Libby advised the Vice President that he wanted to share with the key judgments of the NIE with Judith Miller. Although if it did occur, he would have advised Libby only to use something if it was declassified. He believed Libby would have told him about any attempts to put something out to the media prior to its declassification and the Vice President cannot recall such a discussion. [Note this paragraph contradicts Cheney's statements elsewhere in several key ways, and the question was not about key judgments but about the uranium portion]

When asked if he ever had a conversation with Scooter Libby wherein Libby informed the Vice President that certain material within the NIE needed to be declassified before it could be shared externally, Vice President Cheney advised he does not recall. [This is where Cheney refuses to answer questions about whether he said the President, and then he started complaining that he was short of time]

While Fitzgerald never asked Cheney whether Libby had asked him about declassified Plame’s identity–as distinct from the NIE–Cheney asserted that:

• He has no personal knowledge of anyone providing Plame’s identity to any reporter.
• He does not recall discussing Plame with Libby prior to Novak’s column
• He does not recall Libby meeting with Judy Miller
• He has not recall any conversations about declassifying the NIE before leaking it to a journalist

Again, this is not a specific denial of remembering a conversation about declassifying Plame’s identity, but it would be virtually impossible for Cheney, after having made these assertions, to later claim he remembered insta-declassifying Plame’s identity in anticipation of leaking it to Judy Miller (on Cheney’s order, it must be said). Sure, Libby could have and would have had some evidence that Cheney had done just that. And Cheney could have said, “Eureka! I remember now, insta-declassifying that counterproliferation officer’s identity!” But given the way Cheney claimed to have no memory of anything related to declassifying even the NIE, much less Plame’s identity, such approaches would have been pretty weak defenses for Libby.

Of course, speaking as he was in May 2004, when everyone assumed there would be no way Judy Miller would testify about her conversation with Libby, Cheney probably thought no one would ever wonder whether Libby was authorized to leak Plame’s identity to Miller.

But after 2005, when Judy testified, it was too late for Cheney to change his testimony. Libby was already fucked. Fucked over by the guy he went to such lengths to protect.

Cheney was publicly implying that he would have had the authority to declassify Plame’s identity. Perhaps this was just an attempt to make people ignore inquiries like mine. But it’s just as likely that when Cheney realized that Libby had testified he had ordered Libby to leak stuff to Judy Miller (this happened the same weekend Cheney shot an old man in the face), he wanted to give Libby the impression that his own testimony protected Libby from an IIPA violation.

But it didn’t. Judy’s unreliable testimony saved Libby. But without that, Cheney’s own testimony would have been the evidence Fitzgerald would have needed to charge Libby with deliberately outing a CIA spy.

photo: P5ychoP3nguin via Flickr

Okay, prepare for the onslaught of weeds. Here’s one that made me vomit, from the very beginning of the Cheney interview report.

Vice President Cheney was represented by Terrence O’Donnell and Emmet T. Flood of the law firm of Williams and Connolly…

Cheney was formally represented not only by Terry O’Donnell but also by Emmet Flood. Who, after Pat Fitzgerald noted the cloud over Cheney’s head and just three days after Libby was sentenced to 30 months in jail, got hired by the White House. [updated, h/t MadDog] Who, for the last two years of the Bush Administration, took the lead in preventing Congress or anyone else from getting documents that would implicate Rove or–you guessed it–Dick Cheney.

And Emmet Flood is almost certainly the Deputy who attended the meeting between long-time Cheney colleague Fred Fielding and Scooter Libby, at which Libby made one more bid for a pardon.

[Around January 17 of this year], Libby, who hadn’t previously lobbied on his own behalf, telephoned Bolten’s office. He wanted an audience with Bush to argue his case in person. To Libby, a presidential pardon was a practical as well as symbolic prize: among other things, it would allow him to practice law again. Bolten once more kicked the matter to the lawyers, agreeing to arrange a meeting with Fielding. On Saturday, Jan. 17, with less than 72 hours left in the Bush presidency, Libby and Fielding and a deputy met for lunch at a seafood restaurant three blocks from the White House. Again Libby insisted on his innocence. No one’s memory is perfect, he argued; to convict me for not remembering something precisely was unfair. Fielding kept listening for signs of remorse. But none came. Fielding reported the conversation to Bush.

The day after this interview, Bush had his own personal defense attorney over to the White House to ask whether he should pardon Libby. Libby didn’t get the pardon.

Patrick Fitzgerald made it clear that Dick Cheney was the ultimate target of the CIA Leak Case. And Dick Cheney did the obvious thing any bureaucratic master would do. He put his own personal defense lawyer on the payroll to help obstruct any efforts to expose his role in outing Valerie Plame.

There is a lot in Cheney’s interview report–we’ll have a busy weekend. But for the moment, let’s start with this bit:

After the Vice President again mentioned that he was pressed for time, two separate requests were made to Vice President Cheney in an effort to assist the DOJ/FBI investigation into this matter. First, an FBI waiver form was presented to the Vice President and copies were given to his attorneys. It was explained to Vice President Cheney that his signature was being sought on the waiver form in order to release any reporters with whom the Vice President may have had conversations about the subject matter of this investigation, from promises of confidentiality arising from any such conversations. Vice President Cheney acknowledged receipt of the FBIs waiver form but declined to sign until his attorneys have had sufficient time to review it.

Cheney refused to release the reporters he spoke with of confidentiality.

Now, over the course of his interview, Cheney was asked and he denied speaking with Novak and Cooper (and claimed to have no knowledge of discussions with Judy). The sole key journalist in question he didn’t deny any knowledge about was Woodward (and, though less important, Andrea Mitchell). But he basically denied speaking to any journalist.

And then he refused to sign a waiver of confidentiality over his conversations with journalists.

Couple that with a few more data points.

1. When Libby was first asked to sign such a waiver, he too refused to sign it.
2. When Novak was first asked to testify, he refused to testify until he could limit his testimony to those who had signed such waivers (and he originally limited it to Armitage, Rove, and Harlow).
3. The only question Judy Miller refused to provide some answer to when I posed a bunch of questions about her involvement was about seeing Cheney in Jackson when she saw Scooter (the Aspen comment).
4. After Novak was interviewed in September 2004, someone–presumably Fitzgerald–searched for records of contacts between Novak and the White House on a bunch of days, including July 7, 2003, the day before Novak spoke with Armitage.
5. Judy refused to testify about her conversations on this subject until she could limit her conversations to Libby.

If Cheney spoke to both Novak and Judy–and there’s reason to believe he might have–he refused to expose those conversations to the scrutiny of Fitzgerald.

Moreover, if interviews of senior-level White House officials become subject to routine public disclosure, the White House official may agree to talk only in response to a grand jury subpoena in order to obtain the confidentiality protection of Rule 6(e) of the Federal Rules of Criminal Procedure.

And if senior White House officials don’t cooperate with DOJ investigations, it may deprive investigators of information about the underlying White House policies tied to alleged crimes.

In any such investigation, it will be important that White House officials be able to provide law enforcement officials with a full account of relevant events. Any such investigation may delve into or require a full accounting of internal White House deliberations or other government operations. Questions may cover, for example, conversations between the President or Vice President and senior advisors, the decision-making process on specific policy matters, advice given to the President or direction provided by the President, and internal discussions relating to White House interactions with other Executive Branch entities and with Congress.

Writing just one week after Breuer’s boss, Eric Holder, announced an investigation into torture that may ultimately consider White House deliberations (or at the very least, OVP machinations), I’m sympathetic to Breuer’s claimed concern with obtaining such high level cooperation.

But I think nothing undermines Breuer’s argument that DOJ’s efforts to keep Cheney’s CIA Leak case interview secret will enhance cooperation in the future more than Dick Cheney’s suggestions that he’s not going to cooperate with the torture investigation, regardless of what happens.

WALLACE: If the prosecutor asks to speak to you, will you speak to him?

CHENEY: It will depend on the circumstances and what I think their activities are really involved in. I’ve been very outspoken in my views on this matter. I’ve been very forthright publicly in talking about my involvement in these policies.

I’m very proud of what we did in terms of defending the nation for the last eight years successfully. And, you know, it won’t take a prosecutor to find out what I think. I’ve already expressed those views rather forthrightly.

Of course, maybe Fourthbranch said that because Breuer–who as head of Criminal Division may well have some oversight of the torture investigation–has telegraphed that calling someone like Cheney before a grand jury "could risk the perception that the investigation itself was political."

In addition, forcing White House officials to be brought before grand juries could have the effect of injecting the law enforcement investigation itself into the political process, which could intrude upon government operations at the highest level of government, and which could risk the perception that the investigation itself was political, thus undermining public faith in the impartiality of the judicial system. Baseless, partisan allegations that, easily could be investigated and dismissed through voluntary interviews now may have to be investigated through the specter of the grand jury process.

I have a counter-proposal to Breuer’s laughable claim that doing what has long been routine–releasing a high level White House interview–will have different effects than it has always had. And that is this:

If you don’t act like the Law, then Cheney’s not going to treat you as the Law.

And if you refuse to release Cheney’s interview because you want to avoid hurting Cheney’s feelings, you’re only going to be treated like a chump … oh, about two days ago.

In any case, Cheney has already proven Breuer’s premise to be false: people like Cheney are only going to cooperate if there is a political need or the legal force. And protecting him in this way only serves to dismantle both of those.

After some persistence, I got DOJ to respond to my questions about the issue.

The two year window

Just about the only thing the Criminal Division spokesperson could tell me is that Breuer’s submission of an affidavit was not a conflict because it was submitted more than two years after his relationship with Kiriakou ended (the federal guidelines now prohibit lawyers from involvement in an issue pertaining a client they have represented in the last two years).

Before I get into what else DOJ did not tell me (or Covington & Burling, after equally persistent efforts), let’s note the timing.

As I note in a post subtitled "more than 2 years," the DOJ was making this argument almsot exactly two years after Bush commuted Libby’s sentence. In fact, Breuer’s declaration was signed on the last day of the two year anniversary of Libby’s commutation (Libby’s sentence was commuted on July 2, 2007, and Breuer signed the declaration on July 1, 2009, just meeting a deadline set by Judge Emmet Sullivan). So the timing is all very close to the "end" of the Libby matter (the trial, obviously, ended much earlier, Libby dropped his appeal later). So, two years, but not much more than two years.

That’s all pretty neat timing, particularly since DOJ would not tell me the precise dates of Breuer’s representation of Kiriakou. They told me to talk to Covington & Burling, which I had already done and have done since. Covington & Burling’s spokesperson claimed–utterly implausibly–that she "hasn’t been able to find anything on that yet."

Breuer’s suitability to submit this declaration

I asked DOJ two more general questions: Whether Breuer had told the people in the Civil Division on behalf of whom he submitted this declaration that he had represented someone involved in the CIA Leak Case. And why, of all the people at DOJ who don’t have known involvement with someone involved in this case, why they picked someone who did to submit this declaration.

To the question about whether Breuer had revealed to others within DOJ that he had represented someone in this case, I got an answer familiar from the CIA Leak case itself: that they couldn’t answer anything regarding an ongoing legal matter.

And to the question about why DOJ had Breuer, of all people, submit this declaration, I was invited to look at the existing court filings and public record to see why Breuer was qualified for this.

Perhaps CREW said it best when it summarized Breuer’s appropriateness for this declaration.

Mr. Breuer does not claim to have any relevant law enforcement experience, and certainly does not purport to base his opinions upon any such experience.

[snip]

The only experience plaintiff is aware of Mr. Breuer having with law enforcement investigations involving the White House is his tenure as special counsel to President Clinton during the Independent Counsel’s “Whitewater” investigation. Mr. Breuer “appeared before the grand jury . . . and invoked Executive Privilege,” a claim that was rejected by Chief Judge Johnson and that the Independent Counsel described as “interposed to prevent the grand jury from gathering relevant information.”

Yes, Breuer was once an Assistant DA, yes, Breuer co-ran Covington & Burling’s white collar defense, and yes, Breuer worked in Clinton’s White House Counsel office. But how does that give him experience on prosecuting (as opposed to protecting) high level White House officials? DOJ seems to–literally–be making the argument that its job is protecting the White House institutionally.

So we’re to believe that a guy whose most direct experience pertaining to this issue was an unsuccessful attempt to suppress testimony and representing someone in this very case was the very best guy at DOJ they could come up with to make their argument to Judge Sullivan.

Breuer’s ethical conflict (?)

All of which gets us into the larger question: does Breuer have an ethical duty to recuse himself from this matter or–barring that–reveal his past involvement in it?

Which is how I came to be reading the DC Bar rules this morning. Those state:

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent.

Now, there’s a lot more in the rules (and I appreciate the input from those of you who are lawyers, particularly if you’re in DC). But what Breuer has to be maintaining in participating in what I think easily qualifies as a "substantially related matter" is that the interest of the government in suppressing Cheney’s interview is not materially adverse to Kiriakou’s interest and/or Kiriakou has given consent for Breuer to submit this declaration (the rules also state that a government lawyer’s client is the agency for which he works).

So DOJ, deciding that it is in their interest to suppress Cheney’s interview, has trotted out a guy who represented someone at the CIA who may not want Cheney’s interview to come out. And on that basis, Breuer has made assertions to the Court purporting to be neutral observations about the dire consequences of the release of Cheney’s interview.

And that, ladies and gentlemen, is the approach taken by the purportedly FOIA-friendly Obama Administration.

I’m still working on follow-up of this. I’ll let you know what I learn.

via Sean Hackbarth

I tried to say nothing when news of Novak’s announcement came. I had nothing good to say, though my own father died of brain cancer and I empathize with Novak and his family for that–it is a horrible way to die, particularly for someone whose identity was tied with his intellect.

But I couldn’t resist a snark on twitter:

Cue Woodward claiming he got deathbed confession about what really happened during the 7/9/03 conversation Novak & Libby hid.

Perhaps Woodward will–as he did with Reagan’s CIA Director and Iran-Contra co-conspirator, Bill Casey, who also died of brain cancer–make dubious claims about deathbed conversations with Novak.

But the fact is that Novak died with most of his role in the Plame outing still shrouded in secrecy. That’s partly true because of the significant changes in Novak’s story over time. All of the following Novak claims changed as the stage of the investigation suited:

• Whether he understood the leak was intended to seed a story or it was an offhand remark
• From whom he learned the name "Plame," changing from "they" (his sources, then in the plural, not "two"), to possibly Who’s Who, to definitely Who’s Who
• From whom he learned that Valerie Wilson worked in counterproliferation and whether that person made it clear this meant she was covert
• His use of the word "operative" and whether he really confused Valerie Wilson with someone running a congressional campaign in Wyoming (really! he claimed to have–and other journalists bought it!)
• From whom he learned that Joe Wilson had learned that an "Iraqi delegation had tried to establish commercial contacts"–a detail that was in the CIA report on Wilson’s trip (which remained classified until after Novak wrote his column), though Novak used the wrong date for it
• When he spoke to Rove–which changed from July 9 to maybe July 8 or 9

On all those details, Novak’s story changed repeatedly. And then there’s one I’ve never heard anyone ask: from whom Novak got the talking point, "The White House, the State Department and the Pentagon, and not just Vice President Cheney, asked the CIA to look into it," a talking point that shows up in Libby’s note from Cheney on Plame’s identity and may appear in Judy Miller’s notes.

Yet today, most journalists assume Novak’s final answers–the ones that eventually shielded Rove and Libby and Cheney from most consequences–were truthful, and believe they know what happened.

Me, I don’t claim to know what happened. But I see no reason to trust Novak’s most recent answers when there was so much volatility in his story over time.

And I’m just as interested in unanswered questions about Novak’s timeline. For example:

July 7: As more details of Novak’s story came out, it became clear that he said he was working on a planted story impugning Frances Fragos Townsend on July 7 (one which was published on July 10). Murray Waas once suggested that that story had been planted by Scooter Libby and David Addington. And we now know that shortly after Novak sat for a deposition with Fitzgerald in fall 2004, the White House did a search (presumably pursuant to a Fitzgerald request) on "Plame Wilson Novak" on select dates including July 7. So did Novak talk with Scooter Libby on July 7, one day before Novak asked Richard Armitage a rather stupid question that nevertheless elicited Valerie Plame’s role at the CIA? Did Novak talk with Scooter Libby on July 7, the same day Libby told Ari Fleischer Plame’s name and status and just hours before Novak called Fleischer asking for information on Wilson (Fleischer did not return the call)? Novak testified to disliking Wilson from their appearance on Meet the Press on July 6; if Novak spoke with Libby on July 7, is it even plausible that Wilson wouldn’t come up? Scooter Libby might one day be able to answer those questions, but Novak will bring his side of the story to the grave.

July 8: As I mentioned, Novak ultimately could never decide whether his conversation with Rove, in which Rove confirmed Valerie Plame’s identity, occurred on July 8 or July 9. I suspect the date is significant because if it was on July 8, then some of what Novak said to a friend of Joe Wilson’s on July 8–"Wilson’s an asshole. The CIA sent him. His wife, Valerie, works for the CIA. She’s a weapons of mass destruction specialist. She sent him."–could be attributed to Rove, not Armitage. Indeed, at least as of August 2004, Armitage and Novak disagreed about whether or not Armitage revealed either Valerie’s first name or her role in counterproliferation, and the latter is one part of Novak’s public story that kept changing. I suspect this story remained fluid for some very good reasons–because if it were solved, then Novak’s Armitage story might break down. But we’re not going to find out from Novak now.

July 9: Ah, the secret conversation with Scooter Libby! I’m most interested in this conversation because Novak and Libby appear to have very deliberately hid it. Fitzgerald appears to have been unaware of the conversation as late as September 2004. And Libby and Novak both used a strategy on journalist waivers–refusing global while accepting specific ones–that would have and did shield this conversation for years. Furthermore, there are hints that Judy Miller knew of a Libby-Novak conversation and suggestions that Libby’s unconscious was revealing it even when he was denying it to Fitzgerald (I’m looking for the post that explains these two). In short, this conversation stinks. And given that the aspects of Novak’s story that remain most dubious–where he got the name "Plame" and whether his use of "operative" meant he knew Plame was covert–are two things Libby was spilling to Ari Fleischer on July 7, that stinky conversation really stinks. Maybe Libby’s unconscious–or the burgeoning war between Cheney and Bush–will reveal these things. But Novak won’t.

In other words, short of Woodward making up some wildarsed story about a conversation with Novak on his deathbed, much of this story will likely remain unrevealed.

May Novak’s family have the solace that comes now that he is at peace. And may some of the others keeping these secrets eventually tell them.