Murray Waas » Dan Froomkin

Karl Rove to Cooperate with federal grand jury probing firings of U.S. attorneys; As for Congress, that’s another story

murrayw — Tue, 03 Feb 2009 08:02:26 +0000

I have a story posted tonight on Talking Points Memo quoting Karl Rove’s attorney saying that Rove will cooperate with the federal grand jury probe of the firings of nine U.S. attorneys. The lede to the story:

Karl Rove will cooperate with a federal criminal inquiry underway into the firings of nine U.S. attorneys and has already spoken to investigators in a separate, internal DOJ investigation into the prosecution of former Alabama Gov. Don Siegelman, his attorney said in an interview.

Rove previously refused to cooperate with an earlier Justice Department inquiry into the firings. The Justice Department’s Inspector General and its Office of Professional Responsibility (OPR) said in a report released last September detailing their earlier probe of the firings of the U.S. attorneys that their investigation was severely “hindered” by the refusal by Rove and other senior Bush administration officials to cooperate with the probe.

Rove’s attorney, Robert Luskin, said that Rove, however, will cooperate with a federal criminal probe of the firings being led by Nora Dannehy, the Acting U.S. Attorney for Connecticut who was selected by former Attorney General Michael Mukasey to lead the investigation. Dannehy has recently empaneled a federal grand jury to hear evidence in the matter.

Luskin told me that Rove had earlier not cooperated with the Inspector General and OPR probe into the firings because “it was not his [Karl's] call… it was not up to us decide.” Luskin said that Rove was directed by the Bush White House counsel’s office not to cooperate with the Inspector General and OPR.

Regarding the more recent probe by Dannehy, Luskin said: “I can say that he would cooperate with the Dannehy investigation if asked.”

In recent days, according to legal sources, two former Bush White House officials, including one former aide to Rove, have been contacted by investigators working for Dannehy and asked for interviews. One of the two has agreed to be interviewed.

Regarding the decision to cooperate with Dannehy, Luskin said that Rove “has not and will not assert any personal privileges.” He also said that in regard to the earlier probe, Rove had not done so, but had rather only “followed the guidance of the White House.”

Click here to read the rest of the story.

Whether Rove will testify before the House Judiciary Committee, however, is another story.

As Dan Froomkin has reported:

Just four days before he left office, President Bush instructed former White House aide Karl Rove to refuse to cooperate with future congressional inquiries into alleged misconduct during his administration.

“On Jan. 16, 2009, then White House Counsel Fred Fielding sent a letter to Rove’s lawyer, Robert Luskin. The message: should his client receive any future subpoenas, Rove ‘should not appear before Congress’ or turn over any documents relating to his time in the White House. The letter told Rove that President Bush was continuing to assert executive privilege over any testimony by Rove—even after he leaves office.”

That letter, and a nearly identical one to a lawyer for former White House counsel Harriet Miers, reasserted the White House position that the two former aides have “absolute immunity” from testifying before Congress about anything they did while they worked at the White House — a vastly more extreme and legally unsupportable assertion than, say, a limited claim of executive privilege.

The letters set the stage for what is likely to be a highly contentious legal and political battle over an unresolved issue: whether a former president can assert ‘executive privilege’—and therefore prevent his aides from testifying before Congress—even after his term has expired.

“‘To my knowledge, these [letters] are unprecedented,’ said Peter Shane, an Ohio State University law professor who specializes in executive-privilege issues. ‘I’m aware of no sitting president that has tried to give an insurance policy to a former employee in regard to post-administration testimony.’ Shane likened the letter to Rove as an attempt to give his former aide a ‘get-out-of-contempt-free card’.”

Rove’s lawyer, Robert Luskin “said that he forwarded a copy of Fielding’s letter, as well as the subpoena he got from Conyers, to Obama’s White House counsel, Greg Craig, and essentially asked for the new president’s position on these matters.

“So far, he said, Craig hasn’t responded.

The Obama White House will soon weigh in. As Zachary Roth has reported, the Obama administration is due in court on Feb. 18 to argue the matter one way or the other.

I don’t ordinarily make predictions on my blog. (Oops, there goes my invitation to appear on the McLaughlin Group!) But in this case, I think I know what is going to happen.

The Obama White House will not invoke executive privilege for the chief political advisor for a Republican President, not because of politics, but for these reasons:

1. The federal judge who has been considering the Bush White House’s executive privilege claims– an ideological conservative who was appointed by Bush– has been scathing in his criticism of the claim in this instance.

2. It would simply be bad case law to continue defending the claim of executive privilege, as Jack Balkin explains.

3. Nobody in the White House counsel’s office or DOJ will want to twist the law in any case. To consider the changes that have come to Washington, a former attorney for CREW, now works in the Obama White House Counsel’s Office. Norman Eisen who is the president’s special counsel for ethics and government reform, as a co-founder of CREW, had sued the Bush administration to recover and disclose missing White House emails. It would not seem that he is much of an advocate of radical expansions of executive privilege for presidential aides of former administrations.

And one of Jack Balkin’s former blogging partners at Balkinization now works in the Obama Justice Department’s Office of Legal Counsel.

Finally, there is President Obama himself: a former constitutional law professor.

Update: Buck Naked Politics’ take.

Exclusive: Cheney’s admissions to the CIA leak prosecutor and FBI

murrayw — Tue, 23 Dec 2008 18:14:33 +0000

Vice President Dick Cheney, according to a still-highly confidential FBI report, admitted to federal investigators that he rewrote talking points for the press in July 2003 that made it much more likely that the role of then-covert CIA-officer Valerie Plame in sending her husband on a CIA-sponsored mission to Africa would come to light.

Cheney conceded during his interview with federal investigators that in drawing attention to Plame’s role in arranging her husband’s Africa trip reporters might also unmask her role as CIA officer.

Cheney denied to the investigators, however, that he had done anything on purpose that would lead to the outing of Plame as a covert CIA operative. But the investigators came away from their interview with Cheney believing that he had not given them a plausible explanation as to how he could focus attention on Plame’s role in arranging her husband’s trip without her CIA status also possibly publicly exposed. At the time, Plame was a covert CIA officer involved in preventing Iran from obtaining weapons of mass destruction, and Cheney’s office played a central role in exposing her and nullifying much of her work.

Cheney revised the talking points on July 8, 2003– the very same day that his then-chief of staff, I. Lewis (Scooter) Libby, met with New York Times reporter Judith Miller and told Miller that Plame was a CIA officer and that Plame had also played a central role in sending her husband on his CIA sponsored trip to the African nation of Niger.

Both Cheney and Libby have acknowledged that Cheney directed him to meet with Miller, but claimed that the purpose of that meeting was to leak other sensitive intelligence to discredit allegations made by Plame’s husband, former ambassador Joseph C. Wilson IV, that the Bush administration misrepresented intelligence information to go to war with Iraq, rather than to leak Plame’s identity.

That Cheney, by his own admission, had revised the talking points in an effort to have the reporters examine who sent Wilson on the very same day that his chief of staff was disclosing to Miller Plame’s identity as a CIA officer may be the most compelling evidence to date that Cheney himself might have directed Libby to disclose Plame’s identity to Miller and other reporters.

This new information adds to a growing body of evidence that Cheney may have directed Libby to disclose Plame’s identity to reporters and that Libby acted to protect Cheney by lying to federal investigators and a federal grand jury about the matter.

Still, for those in search of the proverbial “smoking gun”, the question as to whether Cheney directed Libby to leak Plaime’s identity to the media at Cheney’s direction or Libby did so on his own by acting over zealously in carrying out a broader mandate from Cheney to discredit Wilson and his allegations about manipulation of intelligence information, will almost certainly remain an unresolved one.

Libby was convicted on March 6, 2007 of four felony counts of lying to federal investigators, perjury, and obstruction of justice, in attempting to conceal from authorities his own role, and that of other Bush administration officials, in leaking information to the media about Plame.

One of the jurors in the case, Dennis Collins, told the press shortly after the verdict that he and many other jurors believed that Libby was serving as a “fall guy” for Cheney, and had lied to conceal the role of his boss in directing information about Plame to be leaked to the press.

The special prosecutor in the CIA leak case, Patrick Fitzgerald, said in both opening and closing arguments that because Libby did not testify truthfully during the course of his investigation, federal authorities were stymied from determining what role Vice President Cheney possibly played in directing the leaking of information regarding Plame that led to the end of her career as a covert CIA officer, as well as jeopardizing other sensitive intelligence information.

Speaking of the consequences of Libby’s deceit to the FBI and a federal grand jury, Fitzgerald, who is also the U.S. attorney for Chicago, said in his Feb. 20, 2007 closing argument: “There is talk about a cloud over the Vice President. There is a cloud over the White House as to what happened. Do you think the FBI, the Grand Jury, the American people are entitled to a straight answer?”

The implication from that and other comments made by Fitzgerald while trying the case was that Libby had lied and placed himself in criminal jeopardy to protect Cheney and to perhaps conceal the fact that Cheney had directed him to leak information to the media about Plame.

Although it has been widely reported in the media that Cheney and Libby have denied that Cheney directed Libby ever to speak to reporters about Plame, those reports have been erroneous. As Washington Post.com columnist Dan Froomkin wrote in this largely overlooked column, Libby instead had told both the FBI and a federal grand jury that he was uncertain as to whether or not Cheney had directed him to talk to reporters about Plame.

An FBI agent testified at Libby’s trial, as Froomkin pointed out, that Libby had told the FBI that during a July 12, 2003 conversation that Libby had with Cheney, the two men possibly discussed “whether to report to the press that Wilson’s wife worked for the CIA.”

That conversation occurred exactly four days after Cheney ordered the revision of the talking points and Libby had his conversation with Judith Miller about Plame.

And immediately after that July 12, 2003 conversation between Cheney and Libby, Libby spoke by phone with Matthew Cooper, then a correspondent for Time magazine, and confirmed for Cooper that Plame worked for the CIA and that she had played a role in sending her husband to Niger.

A contemporaneous FBI report recounting the agents’ interview with Libby also asserts that Libby had refused to categorically deny to them that Cheney had directed him to leak information to the press about Plame. A heavily redacted copy of Libby’s interviews with FBI agents was turned over this summer to the House Committee on Oversight and Government Reform.

The committee’s chairman, Rep. Henry Waxman (D-Ca.) wrote Attorney General Michael Mukasey on June 3, 2008, reiterating an earlier request that Mukasey turn over to the committee the FBI report of its interview of Vice President Cheney in regards to the Plame matter:

“In his interview with the FBI, Mr. Libby states that it was `possible’ that Vice President Cheney instructed [Libby] to disseminate information about Ambassador Wilson’s wife to the press. This is a significant revelation and, if true, a serious matter. It cannot be responsibly investigated without access to the Vice President’s interview.”

Mukasey declined to release the Cheney report to Waxman in particular, and Congress in general.

But a person with access to notes of Cheney’s interview with federal investigators described to me what Cheney said during those interviews. Later the same person read to me verbatim portions of the interview notes directly relevant to this story.

***

At the time of the leak of Plame’s identity, Cheney, Libby and other Bush administration officials were attempting to discredit Wilson because of the charges that he was making that the White House had manipulated intelligence information to take the nation to war with Iraq. Wilson, a retired career diplomat and former ambassador, had traveled to Niger in February 2002 on a CIA- sponsored mission to investigate allegations that Saddam Hussein’s regime had attempted to procure uranium from the African nation. Wilson reported back to the CIA that the allegations were most certainly untrue.

Despite numerous warnings from the CIA and elsewhere in government that the Niger allegations were most likely false or even contrived, President Bush cited them in his 2003 State of the Union address as a rationale to go to war with Iraq.

On July 6, 2003, Wilson published an op-ed in The New York Times charging that the Bush administration had “twisted” intelligence when it cited the alleged Niger-Iraq connection in the president’s State of Union earlier that year. At the time, U.N. weapons inspectors in Iraq could not find out weapons of mass destruction. Wilson’s allegations were among the first from an authoritative source that the administration might have misled the nation to go to war.

A central part of the effort to counter Wilson’s allegations entailed discrediting him by suggesting that his slection for the trip had been a case of nepotism. Cheney, Libby, then-White House political adviser Karl Rove, and other White House officials told reporters that Wilson’s wife, who worked at the CIA, had been primarily responsible for selecting him to go to Niger.

The day after Wilson’s op-ed, on July 7, 2003, Cheney personally dictated talking points for then-presidential secretary Ari Fleischer and other White House officials to use to counter Wilson’s charges and discredit him.

A central purpose for writing the talking points was to demonstrate that the Vice President’s office had played little if any role in Wilson being sent to Niger and that Cheney was not told of Wilson’s mission prior to the war with Iraq.

In talking points Cheney dictated on July 7, Cheney wrote as his first one: “The Vice President’s office did not request the mission to Niger.” The three other talking points asserted that the “Vice President’s office was not informed of Joe Wilson’s mission”; that Cheney’s office was not briefed about the trip until long after it occurred, and that Cheney and his aides only learned about the trip when they received press inquiries about it a full year later.

***

About a month prior to Wilson having written his own op-ed for the Times, he had told his story of his mission to Niger to New York Times columnist Nicholas Kristof, who wrote a detailed account of Wilson’s trip and his allegations.

In reaction to that column, Cheney personally made inquiries about the matter to both then-CIA director George Tenet and then-CIA deputy director John McLaughlin, apparently on either June 11 or June 12, 2003, according to evidence made public at Libby’s federal criminal trial. Both Tenet and McLaughlin told Cheney of Plame’s role (in reality, a tenuous one) to the selection of her husband for the Niger mission.

On June 12, Cheney and Libby spoke, and Cheney told Libby about Plame’s supposed role.

In notes that Libby took of the conversation, Libby wrote that Cheney said he been told by the CIA officials that Wilson’s mission to Niger “took place at our behest”-in reference to the CIA. More specifically, the notes indicted the mission was undertaken at the request of the CIA’s covert Counterproliferation Division. The notes said that Cheney told Libby that he had been informed that Wilson’s “wife works in that division.”

Cheney then instructed Libby, according to the notes, to ask the CIA to set the record straight by saying that the Vice President’s office “didn’t known about [the] mission” and “didn’t get the report back”, in reference to the fact that Cheney’s office never received a copy of a CIA debriefing report of Wilson after he returned from Niger.

Surprisingly, despite the prominence of Kristof in particular, and the Times in general, the column was largely ignored– at least for a while.

But Wilson’s own July 6, 2003 Times op-ed column by rekindled the issue. Stoking the flames, Wilson then also appeared on Meet the Press that same morning to discuss his column.

Wilson’s column, prosecutor Fitzgerald asserted at Libby’s trial, ignited a “firestorm.”

Wilson’s charges, Fitzgerald went on to say, “came in the fourth month of the war in Iraq, the fourth month when weapons of mass destruction were not found. Coming as they did, they ignited a media firestorm… the White House was stunned.”

In a handwritten notation at the bottom of the July 6 op-ed, Cheney wrote out several rhetorical questions regarding Wilson and Plame: “Have they [the CIA] done this before? Send an Amb. to answer a question? Do we ordinarily send people out pro-bono to work for us? Or did his wife send him on a junket?”

The next day, July 7, Cheney crafted talking points to be distributed to the media which emphasized that his office had not requested that Wilson go to Niger, that the CIA had not told him about Wilson’s findings, and that he personally only learned of the matter long after the U.S. invaded Iraq– from press reports.

The four talking points dictated by Cheney to his press aide, Catharine Martin, stated:

*The Vice President’s office did not request the mission to Niger.
* The Vice President’s office was not informed of Joe Wilson’s mission.
*The Vice President’s office did not receive a briefing about Mr. Wilson’s mission after he returned.
*The Vice President’s office was not aware of Mr. Wilson’s mission until recent press reports accounted for it.

Martin, in turn, sent those talking points on to, among others, Ari Fleischer, the-then White House press secretary, who utilized them in his briefing or “gaggle” for the press that morning.

Fleischer told reporters that same day, according to a transcript of the briefing: “The Vice President’s office did not request the mission to Niger. The Vice president’s office was not informed of his mission and he was not aware of Mr. Wilson’s mission until recent press accounts… accounted for it. So this was something that the CIA undertook… They sent him on their own volition.”

Also hat same day, Fleischer, who was planning to leave his position as White House press secretary, had lunch with Libby, during which, according to Fleisher’s testimony at Libby’s trial, Libby spoke extensively about the role of Plame in sending her husband on the Niger mission.

At the lunch, Fleischer would testify, Libby told him: “Ambassador Wilson was sent by his wife. His wife works for the CIA.” Fleischer testified that Libby even referred to Wilson’s wife by her maiden name, Valerie Plame.

“He added it was `hush-hush’, and on the QT,’ and that most people didn’t know it,” Fleisher testified.

The very next morning, on July 8, Libby met with reporter Judith Miller of the New York Times for two hours for breakfast at the St. Regis Hotel in downtown Washington in an effort to staunch the damage done by Wilson’s column.

Miller testified at Libby’s trial during the breakfast Libby told her that Wilson’s wife worked at the CIA and that Plame had played a role in selecting him for his Niger mission.

In testimony before the federal grand jury in the CIA leak case, Libby testified that Cheney had instructed him before the breakfast to “get everything out.” Regarding the allegations that he leaked information to Miller about Plame, Libby told federal investigators that he had never done so.

During the same breakfast, Libby also disclosed to Miller portions of a then-still classified National Intelligence Estimate which Cheney believed demonstrated that the CIA was to blame for robustly endorsing the Niger information as accurate.

President Bush had personally and secretly declassified portions of the NIE for the specific purpose of leaking them to Miller. In disclosing selective portions of the NIE to Miller, only the President, the Vice President, and Libby knew about the secret declassification.

“So far as you know, the only three people who knew about this would be the President, the Vice President, and yourself,” Libby was asked by Fitzgerald during one session by Libby before the federal grand jury hearing evidence in the CIA leak case,

“Correct, sir,” Libby answered.

Also that same day, July 8, 2003, Cheney met again Cathy Martin– this time on Cheney’s office on Capitol Hill. During the meeting, according to an account Martin gave federal investigators, Cheney told Martin that he wanted some changes and additions made to the talking points devised the previous day that had already been disseminated to Fleischer and other White House communications aides.

Martin told investigators that Cheney dictated the changes to her, and in each case, she took down word for word what the Vice President said. (Martin later repeated this same account under oath during Libby’s trial.)

Cheney told Martin that he wanted the very first of the talking points to now read: “It is not clear who authorized Joe Wilson’s trip to Niger.”

Cheney, of course, knew that the CIA had authorized Wilson’s trip and had sent Wilson to Niger. Both Cheney and Libby had been told by a large number of CIA and State Department officials by then that such was the case, according to the sworn testimony of those officials at Libby’s trial. And the day before, Fleisher had told the press that Wilson’s mission to Niger was “something that the CIA undertook” and that they had also “sent him on their own volition.”

Why would Cheney change the talking points from the day before if he knew that the CIA had sent Wilson and he and his staff had encouraged Fleischer to say that the day before? Obviously, saying it was unclear who had authorized Wilson’s trip to Niger was not only untrue, it also pointed reporters in the direction of asking about Plame.

Asked about this during his FBI interview, Cheney was at a loss to explain how the change of the talking points focusing attention on who specifically sent Wilson to Niger would not lead reporters might lead to exposure of Plame’s role as a CIA officer.

There was a matter, as well, as to why Cheney changed the talking points to say it was unclear who sent Wilson when in fact he had admitted earlier during the same interview with investigators that he clearly knew it was the CIA.

Finally, of course, there was the fact that on the very same day that Cheney changed the talking points that Libby was meeting with Miller and telling Miller that Plame worked for the CIA and had sent her husband to Niger.

In his closing argument during the Libby trial, however, Fitzgerald did mention the issue briefly. None of the media covering the trial, however (with the sole exception once again being Dan Froomkin), appeared to understand its significance or broader context, and did not report it.

Noting the change of Cheney’s July 7 and July 8, 2003 talking points, Patrick Fitzgerald said: “The question of who authorized became number one. That’s a question that would lead to the answer: Valerie Wilson.”

***

Four days later, on July 12, 2003 Cheney and Libby strategized again as to how to beat back Wilson’s allegations. They had traveled together, and with thier families, to the Norfolk Naval Station for the commissioning of the nuclear-powered Nimitz-class aircraft carrier, the U.S.S. Ronald Reagan.

On the flight home, Cheney pressed Libby to talk to reporters to once again, hoping to beat back Wilson’s allegations and discredit the former diplomat. Immediately after landing, Libby spoke to then-Time magazine correspondent Matthew Cooper and confirmed for him that Plame worked for the CIA and had played a role in sending her husband to Niger. It was regarding that conversation that Libby told the FBI it was “possible” that Cheney might have told him to discuss Plame.

On July 2, 2007, President Bush commuted Libby’s thirty month prison sentence, saying he was doing so out of compassion for Libby’s family and because he believed that he believed that the sentence was excessive. The White House declined to say whether Bush might consider a full pardon for Libby.

In the next few days, it will become known whether Libby will in fact be pardoned by President Bush in his final days in office.

In the meantime, what the Vice President and the President told the FBI during their own FBI interviews during the Plame investigation will not be officially disclosed by the White House. Despite the fact that prosecutor Fitzgerald has said told Congress that he has no objections to the provision of the reports to Congress, the Bush administration has refused to follow through.

Special thanks to David Neiwart for editing assistance.