Bush & Valerie, Screaming from the Gallery

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.

Moe, Larry & Curly Put the Screws to the Witness

So Scott McClellan, whose term of derision I shall no longer employ out of a newfound respect for his valiant crusade of self-rehabilitation through political penance, will testify to the House Judiciary Committee on June 20. Early word has it that McClellan's testimony will naturally focus on the Valerie Plame matter, which formed the thematic center of his book What Happened. Congressional hearings, like other forms of entertainment, need unifying motifs, and it was apparently the counter-propaganda conspiracy of White House operatives against Joe Wilson, after all, which sent Scott into a spasm of introspection. Or so I've heard; I haven't read the book, and I'm not going to. Maybe I have newfound respect but I'm not that big a sucker.

Still, it's difficult to see what new thing could possibly be disclosed in a Congressional hearing, which is unfortunate, since what is publicly available at this point is not enough to indict Bush and Cheney. There is a line of questioning, which I at one point attempted to sketch out on this very site, which could force the issue into the open once and for all. To wit, if we remember way back when, the summer of 2003, when the Plame disclosure first became news, Bush took the consistent position that he did not know who disclosed Valerie Plame's CIA connections to the press. He held this position from July, 2003 until at least the end of September, 2003, and it was during this period that he made his various pledges to "get to the bottom of the leak," "fire anyone involved," etc., which transmuted over time into a lame promise to fire anyone "convicted of a crime" in connection with the leak. Obviously, the shift in tone, the relocation of culpability from "involved in the leak" to actual "conviction" for something connected to Plame resulted from Bush getting the word. All the main players in this treasonous cabal were direct assistants to the President. So Bush "moved the goal posts," in the argot of our cliche-ridden day.

I suspect the White House was pretty certain this standard insulated them from the need to take any punitive action against one of their own. Their Ashcroft-picked prosecutor, Patrick Fitzgerald, was not going to indict anyone for a violation of the so-called "Identities Act," although the prima facie case for such a prosecution was always there. Fitzgerald, however, was a reliably obsessive fussbudget who wasn't going to take any chances. When he finally indicted Libby on five counts of "non-substantive" criminal activity (not direct violations of the Identities Act), he had mountains of corroborating evidence which he had obtained through a truly farcical overuse of the grand jury mechanism. He allowed Rove's attorney to "talk him out of" indicting Karl. Even with all that, Fitzgerald managed to lose on one of his five counts against Libby. So Scooter became the one thrown to the mob, all on the understanding that Bush would take care of him, come what may.

Still, even now a skilled questioner could find out from Scottie whether it ever occurred to anyone that it was pretty weird for the President to roam around the United States in an information blackout, talking about his "search" for the leakers, when in some instances they were standing right behind him while he railed about them. This point is so obvious that I thought even the brain-dead American press would figure it out. But I also thought that l'affaire Plame would prove Bush's undoing; it was when it did not so prove that I realized I and most of my fellow Americans had entered uncharted territory. The era of Watergate-style investigations, even of Iran-Contra hearings, were definitively over. A skilled news-cycle management team (and Rove & Cheney are definitely that) could spin and deceive their way out of even so perilous a predicament.

And, if you're old enough to recall, you might notice another major difference twixt now and 1973 concerning how such investigative hearings are held. The lessons of Watergate were not lost on Congressional committee members. You could become a star, like Sam Ervin and Howard Baker. And allowing skilled attorneys like Sam Dash (the majority counsel) to ask the questions of people like Howard Hunt, G. Gordon Liddy and John Dean might advance the case, but it did not advance the career of the incompetent popinjays elected to Congress. So they took over. We now have "rounds" of questioning by 12 or 15 Senators or Representatives, each with about six minutes, which they fill with grandiloquent testimonials to the majesty of, well, mainly themselves. Then they start asking "questions," which never get anywhere, because these people are not trained in interrogation, follow-up, trapping with a hidden premise, boxing in, or any of the other finely-honed tricks of the cross-examiner's art. There are a few exceptions, such as Arlen Specter, Sheldon Whitehouse and Carl Levin, who remember enough of their attorney skills to bore in when they need to. Most of these career poseurs, however, are hopeless.

John Conyers of Michigan heads up the House Judiciary Committee. Thus, I don't expect any miracles; his folksy, avuncular, imprecise style defines the approach that doesn't work when crucial matters are at stake. The hearing will turn into a morality play, where Conyers will muse, "How in the world could high-ranking members of the White House staff get themselves involved in outing a brave member of our intelligence community?" And that will be that. The air will go out of the proceeding as Scott, the prodigal son now on the side of all that's good and decent, will cluck along with John, shaking his head in sad agreement.

Bush will look at the TV replay later, the money shot where his fate hung in the balance, and laugh it off. Moe, Larry & Curly will take their turns fecklessly "grilling" the witness, Scott will sell some more books, and somewhere in the darkness of Dick Cheney's office we will hear that hollow report: yuk yuk yuk.

A fantasy cross-examination of President Bush

I was watching some of President Bush's Rose Garden press conference a couple of days ago (thought: why don't they call these confabs "Rose Bush" conferences?) and was struck again by the docility and compliance of the press corps and the ease with which they are manipulated and controlled by W. I suppose part of this effect has been achieved over the years by a process of winnowing, denying access, ignoring, browbeating, teasing and intimidating the ink-stained wretches of the Fourth Estate. Bush is an effective bully, that's hard to deny, and these reporters are certainly worthy of his contempt.

Still, however much the liberal blogosphere and other critics like to approach the vexatious problem of Bush by labeling him an "idiot" or "moron" or whatever (and I have succumbed to the temptation myself, out of frustration), in fact he's not. His mastery of the press conference is one indication of his above-average intelligence. One trick he's learned is the rambling, disjointed response to a question which eats up 5 or 6 minutes of a half-hour conference, followed by another extended soliloquy soon after so that any thread in the questioning is lost. There is no rapid fire give-and-take in a Bush "press availability." He controls the languorous pace, and the digressions are an important part of this manipulation. Lawyers skilled in cross-examination know that forcing a witness into an admission or contradiction depends on the ability to move the Q&A so rapidly that the witness can't see where the questions are leading. Before the witness can regain control, he has admitted a series of premises which, syllogistically speaking, permit only one logical conclusion. Bush doesn't really allow follow-ups and he doesn't admit anything he doesn't feel like admitting, which is usually nothing. This has allowed him to escape some very gnarly situations while appearing to answer questions in an open manner, most notably during the Scooter Libby/Valerie Plame matter. To a virtual moral certainty, one can say that Bush was fully informed in June/July 2003 about Cheney's program of retaliation against Joe Wilson; yet, despite all the evidence adduced at Libby's trial about what a hot topic of conversation Plame's blown cover was in the summer of 2003, Bush escaped with the lame cover that he was outside the loop, uninformed by his own Vice President and his own Special Assistant (one of Libby's titles) and his own political handler (Karl Rove) about all this critical information.

Suppose, just once, that he'd taken the stand, sworn to tell the truth and was unable to control the pace because of the presence of a presiding judge. Could the transcript read something like this?

Q: Mr. President, you've testified that you had no knowledge, in the summer of 2003, that members of your inner circle disclosed the identity of Valerie Plame to the press; is that correct?
A: Yes.
Q: And that this ignorance must have continued until at least September 30, 2003, because you were making public statements to that effect?
A. Yes.
Q: And you would not deliberately lie to the public, would you?
A: No.
Q: In fact, you promised that you would get to the bottom of the leak, because you disapproved of behavior contrary to the national security of the United States; correct?
A: Yes.
Q: And you did disapprove strongly, did you not?
A: Yes.
Q: In fact, you initially said that anyone "involved" in the leaks would no longer be part of your administration, right?
A: Yes.
Q: We've read transcript excerpts from the Libby trial in open court; would you agree with me that those excerpts prove conclusively that Dick Cheney, Scooter Libby, and Karl Rove were all aware that they were the sources of leaks to the press about Valerie Plame?
A: Well, I don't know what you mean about "proving..."
Q: Establish the fact. There's no doubt, is there? They were involved?
A: I suppose that's true.
Q: And since they were sources, they must have known June through September, 2003 who the sources were, because they were the sources?
A: That follows, yes.
Q: And they knew this at the same time you were speaking publicly about wanting to get to the bottom of the leak?
A: I guess they did, right.
Q: Why do you guess? You know, right?
A: Yes.
Q: And they allowed you to state publicly that you didn't know who leaked the Valerie Plame information, didn't they?
A: What do you mean "allowed"?
Q: They didn't correct you, they didn't say, "Mr. President, stop saying those things in public, we're the ones, we know who did it"?
A: No, they didn't.
Q: Other than when you weren't in the White House, away on business, did you meet daily with Karl Rove, Dick Cheney and Scooter Libby during the period between July 1, 2003 and September 30, 2003?
A: Probably, when I was in the office, yes.
Q: That's your practice, isn't it, an early morning meeting every day?
A: Yes.
Q: You pride yourself on discipline and regularity?
A: I don't want to talk about my bowel habits..
Q: Regular business habits.
A: Yes.
Q: So that all of these meetings in that period would have completely overlapped the period when you were making public statements about your ignorance of the Valerie Plame leak source?
A: It would have been the same period, I guess.
Q: So that when you found out, in the course of Patrick Fitzgerald's investigation and the trial of Scooter Libby, that Dick Cheney, Scooter Libby and Karl Rove were all involved, you realized that your own staff had engaged in acts of rank insubordination and disloyalty to their superior?
A: They should have told me, right.
Q: And what were the consequences to them of not telling you?

Well, a lawyer can dream. Such a forum, such an interrogation, will never happen. It will all go down the memory hole, a casualty of our sloppy, complicated, indifferent times. No one really cares enough to get at the truth anymore. That's another thing our smarter-than-you-think President has taken into consideration.

You mean...Bush knew about the Valerie Plame leak?

Knock me over with a feather. Scott McClellan, in his artlessly artful way, appears to imply that President George W. Bush was in on the ground floor of the Plame cover-up. In a careful leak of one excerpt from his new book, which apparently will not be published until April, 2008, McClellan exonerates himself and throws Bush, Cheney, Rove, Libby and Andrew Card under the bus. Then he declined interviews. Thus, McClellan can enjoy his Holiday season with a clear conscience, held in high esteem by his friends and relations once again, while leaving everyone else to pore over one paragraph like the entrails of a perfectly preserved pterodactyl. This is what passes for integrity in high places these days.

In March, 2007, on the Larry King show, McClellan was somewhat easier on Bush. McClellan: "I spoke with those individuals [Libby & Rove], ... and those individuals assured me they were not involved in this. ... said what I believed to be true at the time. It was also what the president believed to be true at the time based on assurances that we were both given. Knowing what I know today, I would have never said that back then." This makes it sound like McClellan was told by Libby and Rove that they played no role in leaking Plame's name to the press, and that Bush was told the same (false) thing. Bush went around the country from July to the end of September, 2003, asserting that he intended to "get to the bottom" of the leak scandal, and assuring everyone that anyone involved in the leak would be fired, although this promise morphed into a threat to can only those "convicted of a crime." So if Bush was genuinely ignorant of the truth, that can only mean that Rove, Libby and Cheney sat mute while the Chief Executive discussed an "investigation" which they knew was completely unnecessary. Then, when the complete truth came out in the context of the Libby prosecution, and it was established that not only were Cheney, Libby and Rove aware of the leak, but in fact had orchestrated it, Bush took no action against the cabal. And these conspirators purposely kept him in the dark and allowed him to make a complete fool of himself at the same time he was looking stupid already for finding no weapons of mass destruction in Iraq. Huh?

That version of events has never made much sense. Bush has gotten away with it only because the comatose Washington press corps is too lazy to look at clues lying around in plain sight. I sit here this morning possessed only of my native logic, various quotes and a sense of the time line, plus the revelation from a hearing conducted by Henry Waxman, where James Knodell, the White House chief of security, confirmed that no internal investigation of the leak had ever been requested by Bush. How did Bush propose to get to the "bottom" of anything, other than the moral bottom where he and his Administration always dwell?

So when McClellan now writes that Bush was "involved" in McClellan's dissemination of false information about the leak, the logical inference to be drawn is that Bush knew from early on that Libby, Rove and Cheney were involved in the intentional outing of a covert operative. Bush's innocence simply does not make sense. An early decision to make him appear innocent does fit the case, and since he was widely regarded as a simpleton, this possessed an inherent credibility. The general approach of the cover-up was taken directly from the Watergate playbook, to insulate the top man from the shenanigans of his subordinates. But, as with Nixon, Bush wasn't innocent. If Scott McClellan ever expatiates on the subject, I imagine the true extent of Bush's complicity will become more apparent. Maybe Scottie's rehabilitation could follow the lines of John Dean's, il capo di tutti capi among historic whistle blowers.

The astounding thing is that the Washington press corps never figured this thing out, and that Bush was reelected in November, 2004. Dorothy, I don't think we're in 1973 anymore.