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.

Scalito It Is

Bush nominates Samuel Alito, Jr., to replace O’Connor on the Supreme Court:

President Bush today named appeals court Judge Samuel A. Alito to the U.S. Supreme Court. Alito, 55, serves on the Philadelphia-based U.S. Court of Appeals for the Third Circuit, where his record on abortion rights and church-state issues has been widely applauded by conservatives and criticized by liberals.

Alito, appointed to the appeals court in 1990 by George H.W. Bush, has been a regular for years on the White House high court short list. He was also among those proposed by conservative intellectuals as an alternative to Harriet Miers, the White House counsel who withdrew as the nominee last week…

Alito’s resume, including a degree from the Yale Law School and service in the Reagan administration Justice Department, is very much unlike Miers’, who had no appellate experience, and very much like that of Chief Justice John Roberts.

Like Chief Justice John Roberts, Alito served during the Reagan administration in the office of Solicitor General, which argues on behalf of the government in the Supreme Court.

Unlike Roberts, he has opined from the bench on both abortion rights, church-state separation and gender discrimination to the pleasure of conservatives and displeasure of liberals.

While he has been dubbed “Scalito” by some lawyers for a supposed affinity to conservative Justice Antonin Scalia and his Italian-American heritage, most observers believe that greatly oversimplifies his record.

Alito is considered far less provocative a figure than Scalia both in personality and judicial temperament. His opinions and dissents tend to be dryly analytical rather than slashing.

He is young, experienced, credentialed, and qualified. I am pretty sure he is too conservative for most Democrats, and will most certainly be opposed by the advocacy groups on the left, but I do not think he will be opposed by the Gang of 14 and I think conservatives will crawl over broken glass to get him on the bench, so I give his nomination a pretty good chance.

I don’t know where I stand on him- I will wait to see what comes out of the next few weeks.

*** Update ***

Several interesting pieces up at Red State. First, the Baseball Crank notes that the Casey decision will weigh heavily on the nomination and the candidacy of Bob Casey, Jr., while it appears I may have been right- the Gang of 14 will not allow a filibuster to stand.

*** Update #2 ***

Some useful links from the ACSblog (via the dKos, where there has not yet been a front page freak-out by Armando, but most assuredly will be) and Scotusblog.

*** Update #3 ***

Sen. Reid sets the tone for what will probably be the Democratic response:

The nomination of Judge Alito requires an especially long hard look by the Senate because of what happened last week to Harriet Miers. Conservative activists forced Miers to withdraw from consideration for this same Supreme Court seat because she was not radical enough for them. Now the Senate needs to find out if the man replacing Miers is too radical for the American people.

“I am disappointed in this choice for several reasons. First, unlike previous nominations, this one was not the product of consultation with Senate Democrats. Last Friday, Senator Leahy and I wrote to President Bush urging him to work with us to find a consensus nominee. The President has rejected that approach.

“Second, this appointment ignores the value of diverse backgrounds and perspectives on the Supreme Court. The President has chosen a man to replace Sandra Day O’Connor, one of only two women on the Court. For the third time, he has declined to make history by nominating the first Hispanic to the Court. And he has chosen yet another federal appellate judge to join a court that already has eight justices with that narrow background. President Bush would leave the Supreme Court looking less like America and more like an old boys club.

“Justice O’Connor has been the deciding vote in key cases protecting individual rights and freedoms on a narrowly divided Court. The stakes in selecting her replacement are high.

“I look forward to meeting Judge Alito and learning why those who want to pack the Court with judicial activists are so much more enthusiastic about him than they were about Harriet Miers.”

Looks like Matt Yglesias will get his wish about a Jonah Goldberg quota loving liberals column.

*** Update #4***

Orin Kerr writes:

I’m very pleased. This was a smart pick by Bush. It will take a few weeks for Senate Democrats to get comfortable with Alito, I think; given the “Scalito” nickname often used to describe him, many initially will fear that Bush has nominated some kind of Scalia clone. In time, though, I think we’ll see that Alito is more like John Roberts than Antonin Scalia. Like Roberts, Alito is an institutionalist who spent his career working in government at a very high level (including at the Solicitor General’s Office). Like Roberts, Alito is a very likable person. In light of his similarites to Roberts, I expect that Alito will be confirmed without a filibuster.

Meanwhile, the freakout starts at Think Progress with these two posts.

More links here.

*** Update #5 ***

As hoped, the Armando freak-out is posted, and the freak-out, at the moment, seems limited to the fact that Altio’s nickname is Scalito. Heady analysis, that!

Lots of links at the Campaign for the Supreme Court blog at the WaPo.

*** Update #6 ***

Captain Ed has an interesting point, of sorts:

As I mentioned below, Reid caused this problem in part because he did nothing to rescue his own suggestion for the court opening until Miers withdrew her nomination. He had specifically mentioned Miers as a compromise candidate that Democrats would not oppose, and then allowed Schumer and Leahy to belittle her responses in an echo of the conservative opposition that quickly coalesced around Miers. Reid and his caucus could have rescued the most moderate candidate they were likely to see from this administration. The Democratic delight in Bush’s predicament over the last three weeks undoubtedly played a part in the President’s decision to discount any further advice from Harry Reid.

The Captain then predicts confirmation 65-35. Sounds about right.

*** Update #7 ***

Patterico has a pretty decent defense against the “He wants to control your uterus!” charge, which is popping up all over already. Jeff Goldstein discusses the meme:

Meanwhile, as Patterico argued in advance of the nomination, conservatives should be prepared to combat attacks on Alito’s dissent in Casey. In short, left advocacy groups will try to frame that dissent—which touched on the legality of spousal notification for abortion and Justice O’Connor’s “undue burden” criterion guiding restrictions to abortion—as anti-woman, the suggestion being that Judge Alito “believes” women must obtain a husband’s permission before getting an abortion, essentially giving men veto power over a woman’s choice.

Such an argument would be (suprise!) a simplistic and dishonest way to frame a clear and well-reasoned dissent, naturally—which is precisely why we should anticipate the left using it, and why we must be prepared to rebut it in clear and simple terms, namely, that Judge Alito “believed” no such thing, but rather he that believed Pennsylvania had the authority to pass such a law, which did not violate established legal thinking on the conditions for placing restrictions on abortion.

This is going to be a heated one, for sure.

A Crossroads

Reid calls for Rove to resign:

The leader of the Senate Democrats today called for White House chief political strategist Karl Rove to resign, saying it’s time for President Bush to “come clean” with the American people about the administration’s role in the disclosure of a CIA operative’s name.

Sen. Harry Reid (D-Nev.), speaking on ABC’s “This Week with George Stephanopoulos,” said both Bush and Vice President Cheney owe an apology to the American public.

Reid said Bush should pledge not to pardon I. Lewis “Scooter” Libby, Cheney’s chief of staff who was indicted Friday on five charges relating to statements he made to the FBI and a grand jury investigating the leak of the identity of CIA operative Valerie Plame.

Couple of quick things. First, I agree completely that Bush should apologize. At the very least, WH staffers were ‘involved’ in something Bush claimed they were not, whether that be because Bush himself thought it would blow over, or Rove and Libby lied to Bush. Either way, an apology is necessary, if for no other reason than the hundreds of hours of McClellan press conferences in which denials were issued repeatedly.

Two, I am of mixed minds on a Rove resignation. I don’t necessarily agree with the opposition party getting to decide who works for the President. I also don’t believe Rove in the White House is a good thing, and I don’t know if I want him there anymore. From what I can tell, the WH has been rudderless for a while now, so a shake-up might get rid of some of the rot and provide some new blood and focus. Don’t count on it though, as Bush sees no need for changes.

Third, Sen. Reid is out of line with the bit about pledging not to pardon. The pardon is an executive privilege, and it is really none of Reid’s business whether or not Bush exercises that privilege. If Reid wants to make sure that Presidents do not have the right to pardon their staffers, he knows what he can do- write an Amendment to the constitution forbidding it. I don’t think he really cares whether Libby is pardoned or not (should Libby be convicted), and he is just making political hay, but he shouldn’t really try to decide how the President uses his power.

At any rate, I really do feel an apology is necessary, if for no other reasons than purely political.

The Libby Indictment

As I troll around the ‘sphere, it is interesting to me that there seem to be two distinct factions within the left wing regarding what will happen now- those who think this is it, or those who are hoping this is just the beginning. Kevin Drum is a pretty solid example of the former:

That leaves only one conclusion: Fitzgerald didn’t think he could win conviction for any charges related to the actual leak of Plame’s name. And if he didn’t think he could win a case against Mr. X, he probably didn’t think he could win a case against Libby either.

(Unless, of course, he brings further charges against Mr. X at a later date, or announces a plea deal of some kind. Based on his press conference, though, my guess is that he doesn’t plan to. He seemed pretty eager to lower expectations on that score.)

Anyway, that’s my guess. Obviously we don’t know everything yet, and we might not ever know everything. It depends on how leak free Fitzgerald’s office stays. And it says nothing about how insanely malicious and reckless it was to expose Valerie Plame’s identity in real world terms. Legally, though, if Fitzgerald thought he could bring charges against anyone for the actual act of exposing Valerie Plame’s identity, I think he would have done it today.

Kevin has more thoughts here, and Billmon seems to echo Kevin’s sentiments:

But I tend to take Fitzgerald at his word when he says his work is “substantially” complete, and that he’s “not looking expand [his] mandate or authority.” I think there’s still a fair-to-middling chance Karl Rove will be indicted. And if Rove is indicted, I wouldn’t be surprised if Stephen Hadley is too, since he also seems to be implicated in Rove’s attempt to hide his conversation with Matt Cooper. But if Turdblossom or anyone else goes down, I suspect it will be for the same perjury and/or false statement and/or obstruction charges that nailed Scooter. And once that’s done (or the decision is made not to do it) I think Fitzgerald will call it quits, just like Dean said he would…

That sure doesn’t sound like a man ready to go plunging down a rabbit hole into the wonderland of forged Niger documents, Ahmed Chalabi, “Curveball,” the Likudniks in the Pentagon, concealing evidence from Congress — or any of the other issues that enrage and agitate the Cheney administration’s critics. In that sense, Fitzgerald has, perhaps deliberately, positioned himself as the anti-Starr. His turf begins and ends with the Plame outing.

At the other end of the continuum is the Booman Tribune, who thinks this is just the beginning:

The indictment makes it clear that Libby was authorized to have access to classified information (Paragraph 1), but also takes pains to point out not only that he was obligated not to disclose that information, but that he had signed a “Classified Information Nondisclosure Agreement” the primary purpose of which was to let its signatories know, in no uncertain terms, that disclosure of classified information would be a big no-no.

Voila! All of the elements, at least of the Espionage Act (if not the Intelligence Identities Protection Act), have been made out in the indictment. So, why go to all the trouble of setting up the factual predicates for violations of the classified information statutes in the indictment (especially when he didn’t have to) and then stop short of charging them? The explanation he gave during his press conference (i.e., that he was balancing the interests of the First Amendment with the wisdom of charging the crime) does’t fly. Subpoenaing reporters, sending one to jail and threatening to do the same to another one demonstrate, I suggest, his less-than-overarching concern about the First Amendment. And, his expressed concern that the U.S. statute governing classified information not become subject to the loose application which has characterized its British analog (i.e., the “Official Secrets Act”) also rings hollow, especially given the fact that he trumpeted, loud and long, during his press conference the serious violations of national security the conduct in this case appears to have constituted.

No, the real reason to lay out as much factual detail as he did was for Fitz to show the world (and in particular, the world within the White House) that he has the goods, and that he won’t hesitate to drop the dime on some additional malefactors, particularly, Cheney. Let’s face it: Libby is only the consigliere to Cheney’s don. Even though the threat of spending 30 years in the pokey will be a powerful incentive for Libby to cut some kind of deal that might include turning on his boss, the possibility of the additional charges of revealing classified information, particularly against Cheney, is even more powerful since, presumably, Cheney does’t appear to be at risk of a truth-telling-related indictment.

I simply have no idea what is going to happen, and as I have limited experience in this sort of proceeding, I don;t know how useful my guesses will be. I am most alarmed that the CIA has still not even done a damage assessment:

There is no indication, according to current and former intelligence officials, that the most dire of consequences — the risk of anyone’s life — resulted from her outing.

But after Plame’s name appeared in Robert D. Novak’s column, the CIA informed the Justice Department in a simple questionnaire that the damage was serious enough to warrant an investigation, officials said.

The CIA has not conducted a formal damage assessment, as is routinely done in cases of espionage and after any legal proceedings have been exhausted. Yesterday, after a two-year inquiry into the leak, special prosecutor Patrick J. Fitzgerald issued a five-count indictment against Vice President Cheney’s chief of staff, I. Lewis “Scooter” Libby, for perjury, obstruction of justice and making false statements during the grand jury investigation.

Why not? This Observer piece has a bit of background on Plame, and that it was feared she had been compromised by Aldrich Ames, which would be the first time I have heard that:

Her next move was to the London School of Economics, where she began ‘being laundered’ and going undercover. After gaining a degree, she was sent to the College of Europe, an international relations school in Bruges, before moving to Brussels and into the energy business.

There, she worked out of the now closed consulting firm Brewster-Jennings, frequently traveling to Africa and other far-flung areas as an intelligence agent under non-official cover (NOC).

By then none of her friends, and not even her family and father, a retired military officer, knew of her real identity. With no diplomatic protection, the cover she had taken years to build as an energy business consultant would be all-important. Strip it away and, like any other NOC out in the field, she’d be open game for potential enemies – expendable without any official repercussion.

When, in 1997, the CIA began to fear Plame had been given away – along with other covert overseas operatives – to the Russians by the double agent Aldrich Ames, she was brought back to Washington. There, at a reception given by the then Turkish ambassador, her eyes drifted across the room to meet those of retired US ambassador Joseph C. Wilson IV.

It will be nice when all the information finally comes out abut this whole case, rather than in drips and drabs and bits and pieces of unreliable rumor. At any rate, if you have anything else to add, please do so in the comments.

Why Democrats Matter

It seems like more than a year ago when George Bush took his second oath of office. Half the country thought things would go on getting better until Republicans died in a massive ejaculation and ascended to conservative heaven, while the other half got busy updating their passports. The connected Keepers of Conventional Wisdom nervously whispered phrases which hadn’t yet become embarrassing jokes, phrases like ‘privatization,’ and ‘nuclear option,’ and ‘Bill Frist.’ It seemed like a matter of time. What the hell happened? In a word, the Democrats became relevant.

Read more

Kudos to John

Before I start with substantive, and insubstantive posting, let me give a huge thanks to John for the opportunity to contribute. John’s nonpartisan attitude (some would call it equal-opportunity grumpiness) has spawned a comments section that in my opinion offers one of the most moderate and intellectually honest places for posters from both sides of the fence to meet and generally knock each other about the head and shoulder regions. All four sides of the fence if you throw in that autocratic/libertarian/permissive/Buffy-watching mumbo-jumbo.

So to start off with, let me answer the most pressing question in the blogosphere today: what’s in your iPod?

Answer: I don’t own an iPod. I listen to practically the same seventeen or eighteen CDs and that’s mostly when I drive.

In other news, in honor of poster KL I’ll probably start up a tradition of Friday beer blogging. Expect typos.

More soon!



Tunch is safe. I changed my password.

New Poster

I mentioned this briefly in another post, but I have asked Tim F. to start posting here on a semi-regular basis.

Most of you know him from the comments section, and will recognize that he will man the port side of this sinking ship, but he has a lot of interesting things to say and will add some color. Furthermore, it should be fun having me cross post things to Red State while Tim is cross-posting to the Daily Kos. That should raise some eyebrows.

At any rate, say hello to Tim F.

And Tim- I let you post. Can I have Tunch back now?