Cheney, The Witness Stand, and Executive Privilege

Drudge has an interesting tidbit up:

Special Counsel Patrick Fitzgerald is planning to call Vice President Dick Cheney as a witness in the trial of Lewis Libby, the DRUDGE REPORT has leaned.

But the high stakes move could result in an executive privilege showdown between the White House and Fitzgerald, a top government source said Sunday.

“If Mr. Fitzgerald is going to demand a public recounting of conversations between the vice president, or even the president, and his staff, on matters he, himself, has acknowledged are ‘classified,’ executive privilege will obviously be invoked.”

Fitzgerald has made it clear to lawyers involved in the case that he prefers Cheney appear as a witness in open court.

“Mr. Fitzgerald is starting from the position that this should not be done on remote or videotape,” the well-placed source said.

Fitzgerald and Libby’s attorney Joseph Tate discussed possible plea options before the indictment was issued last week, TIME magazine reports in new editions. But the deal was scotched because the prosecutor insisted that Libby do some “serious” jail time.

If they assert executive privilege, and there is a fight, I am willing to bet they will win(*** Update *** Others, in the comments, think executive privilege will not hold). More than anything, though, this would seem to suggest that the investigation is NOT over.

Meanwhile, the WaPo has this piece about Lbby, in which his friends speculate as to motive (which, in and of itself is interesting, as it brushes aside the notion of innocent and proven guilty, as we generally assume some level of complicity when an individual is indicted):

No one would ruminate on the record about Libby’s motives, but there is speculation that perhaps Libby is falling on his sword to protect Cheney, not only his boss, but also a personal friend. The two ride into work together in Cheney’s motorcade most mornings. Although Libby testified otherwise under oath, his own notes indicate that it was Cheney who first told him that Wilson’s wife worked at the CIA. What is not known is whether Cheney was aware of — or sanctioned — Libby’s effort to discredit Wilson and his wife.

“I’ve thought about this all night,” said one acquaintance. “One possibility is that Scooter was just pushing back because Wilson was after them — but it just went too far. And frankly he may have thought the reporters would never testify.”

Another, who worked with Libby in the White House and considers him a friend, echoed the position of Libby’s lawyer: “Perhaps he really did get balled up in the sequencing of his conversations and didn’t remember who first told him about her. Unless you’ve been there, you can’t imagine what those jobs are like. It starts at 6 in the morning and ends 8, 9, 10, 11 at night. Seven days a week the phone is ringing off the hook. . . . Not many people would be able to recall who you talked to first.”

Friends say Libby is working on expanding his legal team to include white-collar criminal lawyers to get him through this week’s arraignment and a potential trial. But at least two close friends worried that the legal battle facing Libby would wipe him out financially.

In other Plame news, Tom Maguire once again addresses the contentious issue of How Covert Was Plame?, as well as a discussion about the roles of Kristof and Russert.

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30 replies
  1. 1
    Blue Neponset says:

    John, have you ever heard of the “Watergate” scandal? In that scandal President Nixon had to turn over taped recordings of his conversations with his staff. He also claimed ‘executive priviledge’ and the SCOTUS didn’t buy it.

  2. 2
    Otto Man says:

    I agree with you that this is a good sign the investigation isn’t over. But I’m not so convinced that the “executive privilege” defense will keep Cheney from taking the stand.

    I believe U.S. v. Nixon is still the governing precedent here — correct me if I’m wrong — and the Burger Court made it clear in that case that there are clear limits to the doctrine:

    “Neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President’s need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises.”

    It’s not an absolute privilege, the need for private communications isn’t enough, and the doctrine is explicitly noted to be inferior to the judicial process.

    I think we could see Cheney in the witness stand, all told. Whether he takes the Fifth is another matter….

  3. 3
    John Cole says:

    Yes, I have heard of Watergate. Nixon fellow, right?

  4. 4
    Jon H says:

    And, politically, it’d be a sure-fire loser. It’d push Bush’s support levels down to the brain-stem Republicans and nobody else.

  5. 5
    Jon H says:

    “But at least two close friends worried that the legal battle facing Libby would wipe him out financially.”

    Oh, please. He’ll get a pardon from Bush, a highly profitable sinecure, and die richer than I’ll ever likely be.

  6. 6

    Yeah, executive privilege. Nothing like invoking EP to rally the country and dispel the idea that bunch of them were conspiring to expose Plame and get back at Wilson.

    And I don’t think the “Well, Plame’s status used to be classified”-argument isn’t going to work, but at least it might shut up diGenova and his harpy wife for awhile. Or not.

  7. 7
    Caroline says:

    I don’t understand all this talk of pardons. IMO, a pardon for someone who mishandled classified information would be political suicide. I guess Jr. could do it if he only cares about himself and not the future of the GOP.

  8. 8
    John Cole says:

    IMO, a pardon for someone who mishandled classified information would be political suicide.

    Yeah. That would hurt Bush’s chances in the 2008 election and might drop his approval numbers below 50.

    Oh, wait.

  9. 9
    Anderson says:

    If they assert executive privilege, and there is a fight, I am willing to bet they will win.

    Not in a criminal case. Otto Man is right to cite Nixon. See this language:

    The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Art. III. * * * [So, on to balancing test; conclude:]

    We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.

    Pretty much by definition, I’d say, conversations about getting Joe Wilson or how to blow Plame’s cover aren’t going to be privileged.

  10. 10
    Paul L. says:

    Caroline Says:

    I don’t understand all this talk of pardons. IMO, a pardon for someone who mishandled classified information would be political suicide. I guess Jr. could do it if he only cares about himself and not the future of the GOP.

    I am sorry Caroline. Where in the indictment of Lewis Libby does it say mishandled classified information?
    I see one count of obstruction of justice, two of perjury and two of making false statements.

  11. 11
    Geek, Esq. says:

    So much for that conservative dedication to strict constructionism. Where does the phrase “executive privilege” appear in the Constitution?

    In any event, an imaginary constitutional privilege doesn’t get to trump the core right to a fair trial and due process.

  12. 12
    Blue Neponset says:

    I am sorry Caroline. Where in the indictment of Lewis Libby does it say mishandled classified information?

    On Page 3 smartypants.

    Valerie Wilson was employed by the CIA, and her employment status was classified.

  13. 13
    Anderson says:

    And I don’t think the “Well, Plame’s status used to be classified”-argument isn’t going to work, but at least it might shut up diGenova and his harpy wife for awhile. Or not.

    Oh, that would be *so* sweet … “gosh, we’d LOVE to testify, but you know that the secrecy of America’s agents is Priority # 1 at *this* White House” … I’m gagging at the thought.

  14. 14
    Geek, Esq. says:

    A claim of EP would kinda be like pleading the 5th. It would be a big time embarrassment.

  15. 15
    Vladi G says:

    might drop his approval numbers below 50.

    How can approval numbers that sit at 39% “drop” below 50%?

  16. 16
    John Cole says:

    Someone give Vladi a primer in sarcasm.

  17. 17
    ppGaz says:

    Where does the phrase “executive privilege” appear in the Constitution?

    Right next to the phrase “Life begins at conception?”

  18. 18
    Otto Man says:

    Yeah. That would hurt Bush’s chances in the 2008 election and might drop his approval numbers below 50.

    I think the point here is that the Republican Party and its candidate in 2008 would be tainted by the Bush-Cheney handling of the scandal. Remember Clinton and the aftershocks for Gore?

  19. 19
    Paul L. says:

    Blue Neponset Says:
    On Page 3 smartypants.

    Valerie Wilson was employed by the CIA, and her employment status was classified.

    Where in that sentence/the indictment are the words that say “Lewis Libby mishandled classified information and is charged with the crime of mishanding/revealing classified information”?
    Otherwise it would be a pardon for obstruction of justice, perjury or making false statements.

  20. 20
    Cromagnon says:

    Senior White House official I. Lewis Libby was indicted today on obstruction of justice, false statement and perjury charges for allegedly lying about how and when in 2003 he learned and subsequently disclosed to reporters then-classified information concerning the employment of Valerie Wilson by the Central Intelligence Agency

    http://www.usdoj.gov/usao/iln/.....102005.pdf

  21. 21
    Vladi G says:

    Someone give Vladi a primer in sarcasm.

    Oh, I got it. But I also don’t think that the Republicans runnning for Senate and the House would be too pleased with such a strategy.

    Also, you don’t normally have a sense of humor.

  22. 22
    Paul L. says:

    Cromagnon Says:

    Senior White House official I. Lewis Libby was indicted today on obstruction of justice, false statement and perjury charges for allegedly lying about how and when in 2003 he learned and subsequently disclosed to reporters then-classified information concerning the employment of Valerie Wilson by the Central Intelligence Agency

    Then why has he not been charged with the crime of mishanding/revealing classified information?

  23. 23
    Paul L. says:

    And Cromagnon that link is a press release not the indictment.

  24. 24
    timekeeper says:

    Where does the phrase “executive privilege” appear in the Constitution?

    Right next to the phrase “Life begins at conception?”

    No, it’s right next to “separation of Church and state” and “right to privacy”.

    If you are going to be snarky, try not to stand too close to your sacred cows. Too much methane from the bovine excrement you’re standing in might have deprived your brain of much-needed oxygen.

  25. 25
    wilson says:

    I suppose Scooter wants to defend on the “I got confused, I work so hard” line. Then why did he not testify “I do not recall?”

    I doubt the “confused memory” defense will succeed. It looks too much like he wanted to protect Chaney, Rove and Bush, especially with the Aspens letter, strange “no waiver/waiver” dance with Miller.

    Why not take the deal now, and get pardoned now? Too much fallout before midterm elections? Better to take the deal after the mid-term elections?

    After the mid-term elections, even if Scotter needs to plead guilty to all charges and receive a sentence for 17 years, so what? Bush can pardon. Bush will not care much about the long term impact on GOP. Why? If he does not pardon, guess who may be in the cross-hairs with supporting testimony from Scooter? Self interest plus Bush’s “loyalty downward” will motivate Bush enough to generate pardons, yes?

    Fitz must know of the this pardon issue and remain motivated to pursue Chaney, Rove and maybe Bush. If all he will end up with is resignations, he will presumably want more than one, from Scooter. He would stop, I suspect, if Big Time and Turd Blossom also resigned.

    The meeting with Bush counsel must have been to negotiate a waiver of privilege issues, eh? Maybe also seeing about resignations (or three pleas with pardons plus resignations) as a package deal to end the whole affair.

  26. 26
    scs says:

    Like I said in another post, do you really believe that Cheney and Libby actually had a conversation where they said to each other they planned to “ruin Joe Wilson and his wife”? Come on. They are good friends, but probably not THAT good of friends. I’m sure they couched it in better language like “Let’s set the record straight on Wilson’s trip”, if only to make themselves feel better, if nothing else. And even if they did use harmful language, you think they are going to “remember” those words in court? You are all dreaming. Cheney probably has no fear of testifying, because all he did technically was share classified info with people who are also cleared to get classified info. The language that they specifically “intended” to harm Wilson, as specified by the act, will never be found.

  27. 27
    scs says:

    By the way, I have a question. Do they have political scandal insurance for politicians? This insurance would pay any legal fees for anybody with legal troubles in office. If they don’t, they should, might come in handy for a lot of pols.

  28. 28
    Anderson says:

    SCS is probably right that Cheney ain’t facin’ nothin’, unless Fitzie finds some unexpected evidence. Even if Catherine Martin heard them plotting to kill the pope, no one’s going to indict the VP on one person’s word.

  29. 29
    Jon H says:

    Paul L writes: “Then why has he not been charged with the crime of mishanding/revealing classified information?”

    Revealing/mishandling classified information is *not necessarily* a crime. As Fitzgerald noted in his press conference, we don’t have a universal Official Secrets Act.

    It is, however, a firing offense, at the very least, because Libby signed an NDA.

    An indictment and conviction are not required for a simple statement of the fact of a non-criminal act.

    And the possibility remains that Fitzgerald could indict Libby for the leak, or for conspiring in the leak with other officials.

  30. 30
    wilson says:

    ” “Let’s set the record straight on Wilson’s trip”, if only to make themselves feel better, if nothing else. And even if they did use harmful language, you think they are going to “remember” those words in court? You are all dreaming. Cheney probably has no fear of testifying, because all he did technically was share classified info with people who are also cleared to get classified info. The language that they specifically “intended” to harm Wilson, as specified by the act, will never be found.”

    Put yourself in the role of Chaney’s counsel. Is it the law that there must be “language” of specific intent? No, only circumstances. And no specific intent at all for the obstruction/conspiracy/false statement charges Fitz could allege.

    Are you sure that all Chaney did was share classified info with one who has a clearance? Might he have also blessed (tacitly or expressly) discussions with reporters? Is the jury going to certainly agree that Scooter (name cuts against Chaney) must have acted on his own in contacting reporters? Can Chaney plausibly deny having any implicit agreement (conspiracy) that included the overt acts of Scooter, namely talking to reporters then trying to say the reporters [not Chaney] told Scooter the name and position of Plame?

    Remember Chaney and Scooter drove to work together each morning, then worked together for 10-12 hours a day. Chaney cannot plausibly say he simply called for “record straightening” and then washed his hands of the mess, can he?

    Look some time at the jury instructions used in a conspiracy/false statements/obstruction case. Defense counsel’s nightmare.

    Fitz needs an insider witness, I suppose, but not much more than he already has to put Chaney in an extremely vulnerable position.

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