It's not exactly "High Noon," but a showdown of sorts may be in the works between Bush's (true) arch-nemesis, Rep. Henry Waxman (D., Los Angeles) and Bush's legal mouthpiece, Attorney General Michael Mukasey. (I have to say once again: thanks ever so much, Dianne Feinstein, for paving the way for this awful AG appointment. Who says that Californians don't elect Republicans to the Senate?)
The issue concerns Vice President Dick Cheney's FBI interview about the Valerie Plame matter, conducted during its investigation prior to the trial of Scooter Libby. The Bureau put together a report, termed a 302, on the interview. My instinct tells me that the VP probably growled a few lies during that one, and with the extraordinarily complicated matrix of evidence built by Fitzgerald during his thorough investigation (and candy-ass indictment), it seems inconceivable that Cheney could have shucked, jived and "if-you-will" -ed his way through that Q&A without (a) perjury and/or (b) obstruction of justice. Patrick Fitzgerald, the Special Prosecutor, claimed at the end of the Libby trial that "a cloud" hung over the Vice President concerning the Plame outing, but that Libby's many lies kept him from getting at the truth. (Let the record reflect that this cop-out has never made any sense. Fitzgerald proved that Libby lied because he had so much contradictory testimony and documentation demonstrating Libby's inconsistencies and was able to reconstruct a true narrative of events. How, then, could he have not seen plainly what Cheney did or did not do, despite Libby's obfuscations? His reasoning, however, sounded better than saying, "I don't want to go after the Vice President because he's too scary.")
Maybe that's for another day. Back to Cheney's 302: Chairman Pit Bull of the House Oversight Committee feels, like the Rolling Stones feel about love, that pursuit of truth is real and not fade away. He wants that 302. So Michael Mukasey (did I mention that without Feinstein's support we might have forced Bush to appoint an actual independent AG instead of another pocket consigliere for W?) wrote Bush and told him to write back telling Mukasey not to produce the 302 on grounds of "executive privilege." Bush's White House has really worn that concept down to the nub at this point. What, you may ask, is executive privilege? The most definitive statement of the concept was provided by the Supreme Court in Nixon vs. United States in 1974: It recognizes
"the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties" and that "[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process."Mukasey is obviously familiar with the case; thus, his little jewel of sophistry in his letter to Bush, imploring W to tell Mike to do the right thing, informing Bush that failure to protect Cheney's 302 from Waxman may have a "chilling effect" on future cooperation of the Executive Branch with FBI investigations. You know, how can you be "candid" if what you tell the G-Men may wind up in the hands of a Congressional committee, particularly one headed by the oppo-party?
Rest assured that Mukasey's long, case-citing letter is full of sophisticated legal arguments referring to every conceivable basis for asserting the privilege and deep-sixing the 302. You might think that because the letter is so long and makes so many arguments that there must be something to all this verbiage, and you can be excused if you think so. Having more than a passing familiarity with how such briefs are prepared, however, I can assure you this is not the case. The issue is actually pretty simple: was Elliot Ness in Dick's office to "advise and assist" him or to grill him on what he knew about blowing Valerie's cover? Kind of clarifies things, doesn't it? So Mukasey's letter is all about covering Mike's ass - he's the one defying the subpoena and a former judge knows all about the perils of contempt. He told his staff of legal eagles to write the hell out of the memo so it looks like there's something to his stonewalling besides...stonewalling.
Let's put it this way: don't "high government officials" always have a duty, a preexisting duty, to cooperate with the FBI when they're being investigated? How is their "candor" affected by subsequent House oversight? You mean, knowing that Congress might exercise its Constitutional prerogatives to look into the matter of how the Executive Branch handles serious breaches of classified information means the VP can start lying to the FBI so he doesn't look bad later?
Maybe if Obama is elected and appoints an ethical attorney general we'll get to see that 302. It will be difficult for the House to enforce its subpoena against Mukasey since ordinarily, in sane times, they would be asking for the AG's cooperation; that is, requesting Mukasey to bring a contempt action against Mukasey to compel Mukasey to produce the 302. For now the system is completely broken; a Constitutional crisis a day with this crew, and we've gotten used to it. Congress storms and splutters about the breakdown and gets nowhere, because ultimately the system needs patriots and people of good faith to function properly. And those are almost nowhere to be found anymore.
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