The Prosecutor Zeroes In

By Dan Froomkin
Special to washingtonpost.com
Tuesday, October 18, 2005; 3:21 PM

Could the CIA leak investigation turn into an accountability moment for the Bush administration and the way it handled intelligence before and after taking the country to war?

Jim VandeHei and Walter Pincus write in The Washington Post: "As the investigation into the leak of a CIA agent's name hurtles to an apparent conclusion, special prosecutor Patrick J. Fitzgerald has zeroed in on the role of Vice President Cheney's office, according to lawyers familiar with the case and government officials. The prosecutor has assembled evidence that suggests Cheney's long-standing tensions with the CIA contributed to the unmasking of operative Valerie Plame. . . .

"In the course of the investigation, Fitzgerald has been exposed to the intense, behind-the-scenes fight between Cheney's office and the CIA over prewar intelligence and the vice president's central role in compiling and then defending the intelligence used to justify the war. . . .

"Before the war, he traveled to CIA headquarters for briefings, an unusual move that some critics interpreted as an effort to pressure intelligence officials into supporting his view of the evidence. After the war, when critics started questioning whether the White House relied on faulty information to justify war, Cheney and [Chief of Staff I. Lewis 'Scooter'] Libby were central to the effort to defend the intelligence and discredit the naysayers in Congress and elsewhere."

Tom Raum writes for the Associated Press: "Special prosecutor Patrick Fitzgerald's CIA-leak inquiry is focusing attention on what long has been a Bush White House tactic: slash-and-burn assaults on its critics, particularly those opposed to the president's Iraq war policies.

"If top officials are indicted, it could seriously erode the administration's credibility and prove yet another embarrassment to President Bush on the larger issue of how he and his national security team marshaled information -- much of it later shown to be inaccurate -- to support their case for the U.S.-led invasion of Iraq in March 2003."

James Gordon Meek, Thomas M. DeFrank and Kenneth R. Bazinet write in the New York Daily News: "Cheney's name has come up amid indications Fitzgerald may be edging closer to a blockbuster conspiracy charge - with help from a secret snitch.

" 'They have got a senior cooperating witness - someone who is giving them all of that,' a source who has been questioned in the leak probe told the Daily News yesterday.

"Cheney was questioned last year by prosecutors and has hired a private attorney, former colleague Terrence O'Donnell, who declined to comment when contacted by The News.

"Cheney spokeswoman Lea Anne McBride only offered the standard canned response that her boss is cooperating."

Adam Entous writes for Reuters about "signs the federal prosecutor investigating who leaked the identity of Wilson's wife, covert CIA operative Valerie Plame, will announce whether he will bring charges as early as Wednesday, people close to the case said. . . .

"Fitzgerald's office said on Monday it had decided to announce any decisions in the Plame case in Washington, rather than Chicago, where the special prosecutor is based.

"It is unusual for Fitzgerald's office to comment on the case and the statement led some observers to wonder if it might signal an imminent decision or that Fitzgerald was trying to increase pressure on potential targets to cut a deal."

Here are Fitzgerald spokesman Randall Samborn's exact words: "If and when there would be any announcement, it would be made in Washington."

Caroline Daniel and Edward Alden write in the Financial Times: "Evidence is building that the probe conducted by Patrick Fitzgerald, special prosecutor, has extended beyond the leaking of a covert CIA agent's name to include questioning about the administration's handling of pre-Iraq war intelligence."

Daniel and Alden note that the Democratic National Committee is calling attention to the fact that almost all of the members of the White House Iraq Group have been questioned by Fitzgerald. "The team, which included senior national security officials, was created in August 2002 to 'educate the public' about the risk posed by weapons of mass destruction on Iraq."

Can a Vice President Be Indicted?

All these news stories suggesting that Fitzgerald is drawing a bead on Cheney's office raise an interesting -- if almost entirely academic -- question: Can a vice president be indicted?

There are no signs that Fitzgerald is aiming directly at Cheney himself. And as far as we know, the vice president has not been called before the grand jury -- though he did have at least one very mysterious meeting with prosecutors early last summer. (See this June 5 New York Times story.)

Anyway, however ridiculous the question may or may not be, the answer would appear to be: Yes. Technically and legally, a sitting vice president can be indicted. In fact, there's a precedent.

Not long after he killed Alexander Hamilton in their famous 1804 duel, Vice President Aaron Burr was indicted for murder in both New York and New Jersey. No constitutional crisis ensued.

And as this 2000 Department of Justice memo lays out, the department researched the issue thoroughly in 1973.

Back then, Vice President Spiro T. Agnew was trying to stave off a grand jury investigation into kickback, bribery and tax evasion charges by insisting that he was only answerable to Congress.

After all, only Congress holds the power to remove the president or vice president from office -- and presumably it would be impossible to function as vice president from a jail cell.

But none other that then-solicitor general Robert Bork concluded that, while "the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions," the vice president was fair game.

The "brief from the solicitor general argued that, while the president was immune from indictment, the vice president was not, since his conviction would not disrupt the workings of the executive branch."

Agnew ended up resigning his office as part of a plea bargain.

Civil suits of course are another story.

Richard Keil wrote in a Bloomberg story yesterday that he had recently spoken to Ambassador Joseph Wilson, Valerie Plame's husband, and Wilson "said that once the criminal questions are settled, he and his wife may file a civil lawsuit against Bush, Cheney and others seeking damages for the alleged harm done to Plame's career.

"If they do so, the current state of the law makes it likely that the suit will be allowed to proceed -- and Bush and Cheney will face questioning under oath -- while they are in office. The reason for that is a unanimous 1997 U.S. Supreme Court decision ruling that Paula Jones' sexual harassment suit against then- President Clinton could go forward immediately, a decision that was hailed by conservatives at the time."

No Comment

In a photo op with the Bulgarian president yesterday, Bush once again declined to comment.

"Q Mr. President, would you expect a member of your administration to resign or take leave if they were indicted?

"PRESIDENT BUSH: . . . There's an investigation going on; I've made it very clear to the press that I'm not going to discuss the investigation. And so, therefore -- and so my position hasn't changed since the last time I've been asked this question. There's a serious investigation. We're not going to -- I'm not going to pre-judge the outcome of the investigation."

Miller's Tale

Aaron Brown interviewed New York Times reporter Judith Miller's attorney, Robert Bennett, last night on CNN about what Libby told Miller and what he didn't:

"BROWN: The -- the question of whether he tells her -- whether he says to her Valerie Plame is an interesting one. There is that part in her note that says 'Valerie Flame.' And she says she doesn't remember who told her that. And I think, to some people, it's a bit of a stretch to think that a -- a reporter as resourceful and capable and experienced as Ms. Miller would not remember who told her that.

"BENNETT: Well, but I -- you have to understand the context, which has been lost in some of the reporting.

"In the same book where Judy had conversations with Mr. Libby, she had many other conversations in unrelated -- on unrelated subjects. And, in one of those back pages, there was a just -- with no context to it, there was that name, 'Valerie Flame.'

"And, so, I'm absolutely convinced that she -- she didn't remember."

John Solomon and Pete Yost write for the Associated Press: "Information attributed to Vice President Dick Cheney's chief of staff in New York Times reporter Judith Miller's interview notes is incorrect, offering prosecutors a potential lead to tracking the bad information to its original source.

"Miller disclosed this weekend that her notes of a conversation she had with I. Lewis 'Scooter' Libby on July 8, 2003 stated Cheney's top aide told her that the wife of Bush administration critic Joseph Wilson worked for the CIA's Weapons Intelligence, Non-Proliferation, and Arms Control (WINPAC) unit.

"Wilson's wife, Valerie Plame, never worked for WINPAC, an analysis unit in the overt side of the CIA, and instead worked in a position in the CIA's secret side, known as the directorate of operations, according to three people familiar with her work for the spy agency."

The New York Times is aggregating blogger reaction to the Miller story.

Poll Watch

Richard Benedetto writes in USA Today: "President Bush's job approval rating has slipped to 39%, the lowest measure of his presidency, according to a USA TODAY/CNN/Gallup Poll. . . .

"Bush's fall, from a 45% approval rating in late September, is largely due to a drop in support among independents and Democrats. His approval among independents declined to 32% from 37% since the last USA Today/CNN/Gallup Poll taken Sept. 26-28. Approval among Democrats fell to 8% from 15%.

"Bush's approval among his Republican base continues to hold firm. It was 85% in the previous poll and 84% in the latest, steady support that's preventing him from falling lower.

"Bush, whose approval rating hit 55% shortly after he was re-elected last November, has been below 50% since May. Polls indicate that was due in large part to a growing public sense that the Iraq war is not going well. This is the first time Bush has fallen below 40%."

Here's some of the data .

The poll also asked about Karl Rove. Some 22 percent of those polled had a favorable impression of him; 39 percent were unfavorable; 16 percent had no opinion; 23 percent had never heard of him.

Miers Watch

As always, The Washington Post's Fred Barbash is blogging all the latest Supreme Court-related developments.

But a few highlights:

David G. Savage writes in the Los Angeles Times: "Critics have poked fun at the effusive greeting card messages that Harriet E. Miers used to send to then-Texas Gov. George W. Bush and that have become public following her nomination to the Supreme Court.

"The glowing remarks were not limited to greeting cards, according to the texts of recent speeches and other public remarks released Monday by lawmakers."

For example: " 'I was with him on Sept. 11th, 2001,' she said in June. 'The nation witnessed a resolute, determined, strong leader who swiftly responded to the challenges our country faced. . . . I believe I can say for all of us here, never were we so proud to be Americans, and never were we so proud of a president and first lady.' "

Rick Klein writes in the Boston Globe: "Earlier this year, Supreme Court nominee Harriet E. Miers used several speeches to push for expanding President Bush's powers to protect the United States against terrorism, arguing that 'a nation at war' needs a stronger executive branch, according to transcripts the White House has provided to the Senate Judiciary Committee."

Peter Baker writes in The Washington Post that Bush's hosting of a dozen former Texas Supreme Court justices in the Oval Office yesterday "was intended to quash talk that Bush might withdraw the nomination, officials said." Here's the text of the remarks at that photo op.

Dana Milbank writes in The Washington Post about the big Miers relaunch: "President Bush, in the Oval Office with some Texas jurists who back Miers, said his Supreme Court nominee has 'high character' and 'integrity,' is 'a pioneer' and a 'leader' and is one of the top 'women lawyers' who would bring 'excellence to the bench.' Miers 'will be a superb Supreme Court judge,' Bush said.

"This was meant to be an improvement on the announcement of Miers's nomination two weeks earlier, in which Bush praised her 'character' and 'integrity' and called her a 'pioneer' and a 'leader' among 'women lawyers' known for her 'professional excellence.' Miers is a 'superb choice,' he said back then."

The Conservative Crackup

In his Post story, Baker writes that the enormous, well-financed conservative political apparatus "constructed largely by Bush strategist Karl Rove and deployed effectively on behalf of recently confirmed Chief Justice John G. Roberts Jr. has splintered over Miers and broken free from its commander."

As Baker notes, David Keene , chairman of the American Conservative Union, wrote yesterday in The Hill that many of his friends "swallowed policies" they opposed out of loyalty to Bush.

"No more," Keene wrote.

"From now on, this administration will find it difficult to muster support on the right without explaining why it should be forthcoming. The days of the blank check have ended because no thinking conservative really wants to be part of a team that requires marching in lock step without question or thought, even if it is headed by the president of the United States."

Bruce Bartlett writes on Townhall.com: "The truth that is now dawning on many movement conservatives is that George W. Bush is not one of them and never has been."

Richard W. Stevenson writes in the New York Times, that Bartlett was dismissed on Monday as a senior fellow at the National Center for Policy Analysis, a conservative research group based in Dallas, after he supplied its president with the manuscript of his forthcoming book, "The Impostor: How George W. Bush Bankrupted America and Betrayed the Reagan Legacy."

Sacrifice Card?

Some of the same conservatives opposing the Miers nomination are pointing fingers at White House Chief of Staff Andrew H. Card Jr.

Anne E. Kornblut writes in the New York Times: "His office oversaw the administration's response to Hurricane Katrina, coordinating federal assistance that was broadly condemned as too slow. Mr. Card personally managed the selection of Harriet E. Miers for the Supreme Court, a choice that has splintered the Republican Party and left the administration scrambling to rescue her nomination.

"The confluence of crises, all running through Mr. Card's suite just steps from the Oval Office, has some critics asking whether he needs to clean house or assert himself more forcefully - or at least consider a course correction before Mr. Bush is downgraded permanently to lame duck status."

Torture Watch

Alessandra Stanley writes in the New York Times about " The Torture Question ," a "Frontline" inquiry on PBS tonight.

" 'The Torture Question' methodically makes the case that pressure to wring more information out of prisoners came from the highest echelons of the White House and the Pentagon, well before the 2003 invasion of Iraq with captives from Afghanistan held at Guantnamo Bay, Cuba, and worked its way down to the lowliest, most ill-trained soldiers."

Briefing Watch

Here is the text of yesterday's press briefing with Scott McClellan.

See Helen Thomas try to get McClellan to explain what Bush means when he talks about "legislating from the bench."

Thomas: "For example, is Brown versus the Board of Education of Topeka, Kansas -- was that legislating? Was Miranda legislating? Was the right to a lawyer legislating from the bench?"

McClellan: "These are great questions. I'm not the one who's going through the confirmation process."

See McClellan rue the day he gave briefing room crank Les Kinsolving a homework assignment:

Kinsolving: "Scott, on Wednesday you encouraged me to look at news reports about scandals surrounding the Texas lottery when Harriet Miers was chairwoman of that commission. And it turns out there are hundreds of news reports from the late '90s covering problems with contracts and kickbacks. . . . "

( Ken Herman of the Cox News service yesterday reported: "Those who delve into Miers' lottery years will find a story spiced with political intrigue and rife with charges and countercharges lodged by and involving a colorful cast of characters -- and, tangentially, a story involving President Bush's much-discussed National Guard service.")

There was a first-timer in the room yesterday, Maria Hinojosa of NPR, and her questions prompted McCllelan to explain how things work there.

"People that work here in this room know me very well, and I'm confident in our relationship. It's a relationship that is built on trust. And I'm confident that I have done my part to earn that trust," he said. "And I have great respect for the people in this room that I've worked with for many years, and they're a good bunch. I have deep respect for all that they do and the hard work that they do. . . .

"And one final point. Nothing is ever personal in this room. We're all just doing our job, and I recognize that, and I think people in this room recognize it, as well."

Upstairs, Downstairs

President Bush hosted the annual White House Iftaar dinner last night. Iftaar is the evening meal after a day of fasting during the holy month of Ramadan. Here is the text of his remarks.

The Associated Press reports that he called on all responsible Muslim leaders to denounce violent extremism because terrorists follow an ideology that exploits Islam.

"Attendees included ambassadors from Islamic nations, administration officials and Muslim leaders in the United States.

"The group interrupted Bush's brief remarks once, when he said a Quran has been added to the White House library for the first time in history."

One interesting note: According to the guest list, Bush's dinner companions were almost without exception male. See, for instance, this photo .

By contrast, Laura Bush was holding an almost exclusively female Iftaar dinner at the same time upstairs in the White House residence, featuring some of the Afghan women she met during a visit to their country in March.

Rove's Garage

Things are apparently pretty slow on the Karl Rove stakeout.

Darlene Superville wrote -- and the Associated Press actually moved on the wires -- a story about Rove's garage.

"Rove's wife, Darby, raised the white garage door one morning last week to show journalists outside the million-dollar brick home that the deputy chief of staff, assistant to the president and senior adviser wasn't home. . . .

"There was no car in the garage. And the stuff left behind turned out not to be much different from what gathers dust inside most American garages."

Good grief. It's not like there isn't a lot of news out there. And yes, here's a picture .

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