The investigation was conducted jointly by the Justice Department’s Inspector General (IG) and the Department’s Office of Professional Responsibility (OPR.) Both of those internal watchdogs have no potential prosecutorial power, but can make recommendations that career prosecutors take up their work after they finish their final report. It is unclear whether Attorney General Michael Mukasey will do so.
Despite the fact that its efforts were stymied in part by non-cooperation by witnesses, the report will say- not much of a surprise-that several of the firings were due to the politicization of the Justice Department by Bush administration appointees and that the White House played a role in some of them. Investigators did attempt to do as thorough job as possible in investigating the White House’s role in the firings and were assisted by being able to review some confidential White House emails that the White House had been withholding from Congress.
The report might also touch on efforts by senior Justice Department officials to intimidate several of the fired U.S. attorneys from talking to the press or testifying to Congress about their firings, according to five people interviewed by investigators– including three former U.S. attorneys. (Only one former U.S. attorney, Bud Cummins of Little Rock, would say this for the record. And I should aslo qualify what I just wrote regarding the intimidation issue that I am basing what I say in this one instance based on witnesses to the investigation, rather than to anyone who has read the report.)
The lack of cooperation by some former Bush administration officials with investigators probing the firings of nine U.S. attorneys is not the first time that former administration officials have thwarted investigators probing the politicization of the Justice Department by refusing to answer their questions.
As I first reported on the Huffington Post in August, several former political appointees of the Justice Department’s refused to answer questions posed to them by the Department’s Inspector General about the politicization of the Civil Rights Division.
As a result, a federal grand jury subpoenaed several of the former senior Justice Department attorneys to compel them to testify.
The grand jury had been investigating allegations that a former senior Bush administration appointee in the Civil Rights Division, Bradley Schlozman, gave false or misleading testimony on a variety of topics to the Senate Judiciary Committee.
Sources close to the investigation identified two former Justice Department attorneys, Hans von Spakovsky, who as a former counsel to the Assistant Attorney General for Civil Rights was a top aide to Schlozman, and Jason Torchinsky, who was also a Counsel to the Assistant Attorney General for Civil Rights. Torchinsky was subpoenaed only as a witness in the case.
The non-cooperation by some Bush administration officials in the broader investigation into the firings of the U.S. attorneys might have thwarted some efforts by investigators to determine the entire truth about the firings. But because of that non-cooperation, according to attorneys closely following the matter, Attorney General Michael Mukasey is much more likely to allow career federal prosecutors to continue on with the work begun with the Inspector General.
Update: What to look for tomorrow: Apparently, the Inspector General and OPR want a prosecutor with subpoena authority to continue their investigation along. That is for two reasons: The Inspector General and OPR do not have prosecutorial authority. And they have been unable to compel testimony from witnesses outside the Justice Department.
This story posted online today by the Washington Post asserts that Mukasey is likely to name a career prosecutor to continue on with the investigation. However, the story appears to be a preemptive move by senior political appointees in the Department to close down discussion of appointing a special prosecutor instead.
If the report goes into a lot of detail about involvement by White House officials in the firings– or more importantly says that there are a number of important unresolved issues about the role of White House officials or politically connected officials with ties to the White House in the firings– then the case for naming a special prosecutor would be more compelling. This leak to the Post tonight appears to be an attempt to close down that debate before the issue before anyone has even read a single page of the report.
Second update: The NYT has also since posted online a story about the forthcoming report. But unlike the Post, they do not entirely take the spin that all will be well if a career prosecutor takes over the matter of continuing on with the probe instead of a special prosecutor being named. In particular, this excerpt from the Times story is especially pertinent :
One central question is the role officials at the White House, including Mr. Rove and Ms. Miers, played in the firings. But Paul K. Charlton, who was fired as United States attorney in Arizona after clashing with supervisors in Washington over a number of policies and investigations, said he was concerned that the inspector general’s limited jurisdiction and the White House’s refusal to turn over key records might have stymied the investigation.
The inspector general and the Office of Professional Responsibility, which conducted a joint investigation, have kept their findings under tight guard before the public release, declining to discuss any details with central players in the investigation or their lawyers. “It’s been a lockdown,” one defense lawyer said.
To look for tomorrow as the day progresses: What Rep. John Conyers (D-Mi.), the chairman of the House Judiciary Committee, and Sen. Patrick Leahy, the chairman of the Senate Judiciary Committee, have to say about Mukasey most likely not naming a special prosecutor.]]>
Largely lost in the press coverage today is the fact that the official notification to Congress comes just in the nick of time for Attorney General Mike Mukasey. A vote on whether or not to hold Mukasey is contempt was scheduled for today, but now put off that Mukasey is saying that he is invoking the privilege on the orders of the President. Bush personally invoked the privilege Tuesday night, according to White House spokesman Tony Fratto.
More from the AP:
President Bush has asserted executive privilege to prevent Attorney General Michael Mukasey from having to comply with a House panel subpoena for material on the leak of CIA operative Valerie Plame’s identity.
A House committee chairman, meanwhile, held off on a contempt citation of Mukasey — who had requested the privilege claim — but only as a courtesy to lawmakers not present.
Among the documents sought by House Oversight Chairman Henry Waxman are FBI interviews of Vice President Dick Cheney.
They also include notes about the 2003 State of the Union address, during which President Bush made the case for invading Iraq in part by saying Saddam Hussein was pursuing uranium ore to make a nuclear weapon. That information turned out to be wrong.
Waxman rejected Mukasey’s suggestion that Cheney’s FBI interview on the CIA leak should be protected by the privilege claim — and therefore not turned over to the panel.
“We’ll act in the reasonable and appropriate period of time,” Waxman, D-Calif., said. But he made clear that he thinks Mukasey has earned a contempt citation and that he’d schedule a vote on the matter soon.
What could be in the report that the White House doesn’t want you to know about. Patrick Fitzgerald said in his closing statement at Libby’s trial that there was a “cloud over the Vice President” because of the unanswered questions as to what occurred.
Dan Froomkin ably added some context to that comment in a dispatch he penned during the closing arguments of Libby’s trial:
“What is this case about?” special counsel Patrick J. Fitzgerald asked in his rebuttal to the defense’s closing arguments yesterday in the Scooter Libby perjury trial.
“Is it about something bigger?”
And while Fitzgerald never directly answered that second question, he at long last made it quite clear that the depth of Vice President Cheney’s role in the leaking of the identity of a CIA operative is one of the central mysteries that Libby’s alleged lies prevented investigators from resolving.
“There is a cloud over the vice president . . . And that cloud remains because this defendant obstructed justice,” Fitzgerald said.
“There is a cloud over the White House. Don’t you think the FBI and the grand jury and the American people are entitled to straight answers?” Fitzgerald asked the jury.
Libby, Fitzgerald continued, “stole the truth from the justice system.”
After literally years of keeping his public pronouncements about the case to an absolute minimum, Fitzgerald yesterday finally let slip a bit of the speculation that many of us have long suspected has lurked just beneath the surface of his investigation.
Suddenly it wasn’t just the defendant alone, it was “they” who decided to tell reporters about Wilson’s wife working for the CIA. “To them,” Fitzgerald said, “she wasn’t a person, she was an argument.”
And it was pretty clear who “they” was: Libby and his boss, Cheney.
Another thing that the FBI report might shed light on is whether or not the Vice President Cheney possibly devised a cover story with Libby about how Libby learned of Libby’s identity when he leaked Plame’s name to the press. (Libby claimed that he did not learn about Plame’s identity from classified sources and thus did nothing worng.) Details in this story I wrote in National Journal suggest that there is a substantial body of evidence that that is the case:
In the fall of 2003, as a federal criminal probe was just getting underway to determine who leaked the identity of CIA officer Valerie Plame to the media, I. Lewis “Scooter” Libby, the then-chief of staff to Vice President Dick Cheney, sought out Cheney to explain to his boss his side of the story.
The explanation that Libby offered Cheney that day was virtually identical to one that Libby later told the FBI and testified to before a federal grand jury: Libby said he had only passed along to reporters unsubstantiated gossip about Plame that he had heard from NBC bureau chief Tim Russert.
The grand jury concluded that the account was a cover story to conceal the role of Libby and other White House officials in leaking information about Plame to the press, and indicted him on five felony counts of making false statements, perjury, and obstruction of justice.
At the time that Libby offered his explanation to Cheney, the vice president already had reason to know that Libby’s account to him was untrue, according to sources familiar with still-secret grand jury testimony and evidence in the CIA leak probe, as well as testimony made public during Libby’s trial over the past three weeks in federal court.
Yet, according to Libby’s own grand jury testimony, which was made public during his trial in federal court, Cheney did nothing to discourage Libby from telling that story to the FBI and the federal grand jury. Moreover, Cheney encouraged then-White House press secretary Scott McClellan to publicly defend Libby, according to other testimony and evidence made public during Libby’s trial.
The White House, of course, says this is not about hiding any wrongdoing, but rather their position has been taken entirely out of principle.
But in the past, while the President has refused to cooperate– citing either national security concerns or executive privelege– as a reason to not only co-opeate with congressional inquiries but also with investigations of his own Justice Department– after public opinion has turned,
the White House President Bush himself abruptly changed his own course– and and agreed to cooperate after all.
Marcy Wheeler has the text of the correspondence between Mukasey and Waxman with some analysis as well.]]>