By Dan Froomkin
Special to washingtonpost.com
Thursday, July 17, 2008; 1:12 PM
Michael Mukasey has President Bush's back.
Mukasey succeeded toady Alberto Gonzales as attorney general last fall. But the notion that he would restore independence to that post took a big hit yesterday when he refused to turn over to a House committee key documents related to the CIA leak investigation.
Mukasey may have a better reputation than Gonzales, but it turns out he is just as willing to use his power to protect the White House from embarrassing revelations.
The House Oversight and Government Reform Committee had subpoenaed Mukasey to turn over, among other documents, a report on Vice President Cheney's interview with FBI agents investigating the leak of covert CIA operative Valerie Plame's identity.
In a move that was mutually self-serving, Bush yesterday -- on Mukasey's urging -- made what may be his most audacious assertion yet of executive privilege.
Congress's legitimate oversight interests aside, common sense suggests Cheney waived executive privilege when he voluntarily agreed to speak to FBI agents. But Mukasey countered that with a novel argument: "I am concerned about the subpoena's impact on White House cooperation with future Justice Department criminal investigations," he wrote in his Tuesday letter to Bush, asking to be ordered not to comply with the subpoena.
Special prosecutor Patrick Fitzgerald's criminal investigation of the Plame leak stopped short of indicting Cheney. But Fitzgerald made it clear that he was hot on Cheney's trail until he was obstructed by a pack of lies from former vice presidential chief of staff I. Lewis "Scooter" Libby. In the closing arguments of the trial at which Libby was found guilty, Fitzgerald declared: "There is a cloud over the vice president. . . . And that cloud remains because this defendant obstructed justice."
Had Fitzgerald indicted Cheney, or had Cheney been called as a defense witness in the Libby trial -- as Libby's legal team initially indicated they would do -- Cheney's interview would have become public record. Instead, like so many other intriguing products of Fitzgerald's investigation, it remained out of public view.
Oversight Committee Chairman Henry Waxman tried to pick up Fitzgerald's trail. As I wrote in my column of Dec. 3, Waxman first got Fitzgerald to agree to turn over key documents from his investigation. When the White House intervened, Waxman challenged the newly installed attorney general to show some independence.
"I hope you will not accede to the White House objections," Waxman wrote in his initial letter to Mukasey. "During the Clinton Administration, your predecessor, Janet Reno, made an independent judgment and provided numerous FBI interview reports to the Committee, including reports of interviews with President Clinton, Vice President Gore, and three White House Chiefs of Staff. I have been informed that Attorney General Reno neither sought nor obtained White House consent before providing these interview records to the Committee. I believe the Justice Department should exercise the same independence in this case."
Mukasey eventually allowed committee investigators to read considerably redacted versions of the reports on FBI interviews with senior administration officials, including Libby and Rove -- but not Cheney or Bush.
Waxman dropped his request for Bush's FBI interview. But he repeated his request for Cheney's. And he noted that Fitzgerald, in a July 3 letter responding to a question from Waxman, acknowledged that "there were no 'agreements, conditions and understandings between the Office of Special Counselor the Federal Bureau of Investigation' and either the President or Vice President 'regarding the conduct and use of the interview or interviews.'"
Mukasey had given previous indications that he would not turn on the White House.
For instance, at his confirmation hearings in October, he refused even to acknowledge that waterboarding was torture, an indication that he had no interest in looking too closely into past conduct by the Bush administration. He ordered his prosecutors not to refer contempt of Congress charges against senior administration officials to a grand jury.
But this may have been his ultimate test.The Coverage
Michael Isikoff and Mark Hosenball write for Newsweek: "The Bush administration today unveiled a set of novel and controversial legal arguments in refusing to disclose key details about Vice President Dick Cheney's role in the leak of CIA operative Valerie Plame's identity."
They note Mukasey's insistence that Cheney's interview report was covered by what he called "the law-enforcement component of executive privilege."
"'As far as I know, this is an utterly unprecedented executive-privilege claim,' said Peter Shane, an Ohio State University law professor who is an expert on executive privilege and separation-of-powers issues. 'I've never heard this claim before.'
"Normally, claims of executive privilege are invoked to protect the disclosure of the president's communications with his top advisers. But in this case, the White House invoked the claim to keep secret Cheney's responses to FBI agents (hardly what anybody would call his advisers), who were grilling him as part of the now-closed criminal investigation headed by Fitzgerald. . . .
"What makes the decision to withhold the Cheney interview all the more unusual was the fact that the White House had already agreed to permit congressional investigators to inspect the FBI 302 reports of other top White House aides in the Plame case, including Karl Rove.
"So what was different about Cheney?
"Mukasey argued that giving Congress a copy of the FBI 302 report on Cheney would 'significantly impair' the Justice Department's ability to investigate wrongdoing by future White House officials. Presidents and vice presidents would be reluctant to submit voluntarily to FBI interviews because there would be 'an unacceptable risk' that their accounts would eventually become public, he contended in a letter to Bush recommending that the president invoke the privilege."
But as Isikoff and Hosenball make clear, that argument is a stretch.
"'Creative is a good word to describe it,' said Mark Rozell, another executive-privilege expert who is a professor at George Mason University's School of Public Policy, about the attorney general's contention. 'This is really an argument to protect the White House's own political interests and save it from embarrassment.'
"As a practical matter, White House officials -- including presidents and vice presidents -- must cooperate with Justice Department criminal investigations involving their administrations, noted Michael Bromwich, a former federal prosecutor who investigated White House wrongdoing during the Iran-contra affair and later served as the Justice Department's inspector general. The alternative to submitting voluntarily to FBI interviews is simple: officials would invariably receive grand-jury subpoenas -- and pay a rather high political, if not legal cost -- if they refused to cooperate. 'In the real world, high-level White House officials don't have the choice of not submitting to FBI interviews,' Bromwich said."
Here's Jonathan Turley talking to MSNBC's Keith Olbermann last night: "You know, reading this letter from Attorney General Mukasey to the president is extraordinary. He doesn't just claim presidential privilege, he claims deliberative process privilege, he claims law enforcement privilege, he claims anything short of a copyright infringement to keep the documents away from Congress. His position apparently is, 'I recognize,' and he says this, 'that you, that Congress, has an oversight right to look into this area. You just can't see any of the evidence you need to do it.'
"And, unfortunately, this is more of the same. We've seen this in other area where Mukasey is treating the White House as off the constitutional grid. That anything that happens in that building, in his view, is simply not accessible to Congress."The Documents in the Case
Here are the various documents released by the Oversight Committee yesterday.
In Mukasey's letter to Bush, he writes: "Many of the subpoenaed materials reflect frank and candid deliberations among senior presidential advisers, including the Vice President, the White House Chief of Staff, the National Security Advisor, and the White House Press Secretary. The deliberations concern a number of sensitive issues, including the preparation of your January 2003 State of the Union Address, possible responses to public assertions challenging the accuracy of a statement in the address, and the decision to send Ms. Plame's husband, Ambassador Joseph Wilson, to Niger in 2002 to investigate Iraqi efforts to acquire yellowcake uranium. Some of the subpoenaed documents also contain information about communications between you and senior White House officials."
From Waxman's response: "For the last five years -- first in the minority and now in the majority -- I have tried to investigate what really happened. And the White House has resisted oversight every step of the way.
"Special Counsel Patrick Fitzgerald's investigation brought new facts to light. We learned from his work that both the Vice President's top advisor, Scooter Libby, and the President's top advisor, Karl Rove, repeatedly leaked Ms. Wilson's identity to the media.
"But there were questions that Mr. Fitzgerald could not answer. One was the role of Vice President Cheney. . . .
"The Committee's inquiry has tried to penetrate the cloud surrounding Vice President Cheney's conduct. But today, the President has asserted executive privilege and is withholding from the Committee and the American people key evidence about Vice President Cheney's actions.
"During our investigation, we have learned that Mr. Libby told the FBI that it was 'possible' that the Vice President instructed him to leak Ms. Wilson's identity. That would be an extraordinary breach of the public trust.
"There is a key document that could explain what the Vice President knew and what he did: the report of the Vice President's interview with FBI officials working for Mr. Fitzgerald. If there is one document that could pierce the cloud hanging over the Vice President, this is it. . . .
"Today President Bush has taken the extraordinary step of asserting executive privilege over the Vice President's interview with criminal investigators.
"The claim of executive privilege is ludicrous.
"We are not seeking access to the communications between the Vice President and the President. We are seeking access to the communications between the Vice President and FBI investigators. . . .
"This unfounded assertion of executive privilege does not protect a principle; it protects a person. . . .
"The President's actions have darkened the cloud over the Vice President and left important questions unanswered."
Senate Judiciary Committee Chairman Patrick Leahy also responded, with a blistering letter to Mukasey: "It appears you are wearing two hats, one as the person to whom the subpoena was directed, and now facing a criminal contempt citation for noncompliance, and a second as the Attorney General purporting to offer objective legal advice.
"Would you please provide this Committee with the legal analysis that justifies this claim of executive privilege?
"Did you consider recusing yourself from offering a legal opinion to the President on the validity of an executive privilege claim excusing you from complying with a congressional subpoena? If not, why not?
"This executive privilege claim, and your justification for it, appears to turn the privilege on its head. The purpose of executive privilege is to encourage candid advice to the President, not to cover up what the Vice President and White House staff say to investigating authorities when that information is requested in the course of congressional oversight."Ashcroft a Moderate?
Carrie Johnson writes in The Washington Post: "Once seen by many as an extremist, [former attorney general John] Ashcroft, who left his post in 2005, is coming to be viewed as a voice of moderation on some of the most sensitive national security issues the nation faced after Sept. 11."
In a new revelation, Johnson reports that "Ashcroft offered the White House a list of five candidates to lead the Justice Department Office of Legal Counsel in early 2003, but top administration officials summarily rejected them in favor of installing a loyalist who would provide the legal footing needed to continue coercive interrogation techniques and broadly interpret executive power, according to two former administration officials.
"In an angry phone call hours after Ashcroft's list reached the White House, President Bush's chief of staff, Andrew H. Card Jr., quickly dismissed the candidates, all Republican lawyers with impeccable credentials, the sources said. He and White House counsel Alberto R. Gonzales insisted that Ashcroft promote John Yoo, a onetime OLC deputy who had worked closely with Gonzales and vice presidential adviser David S. Addington to draft memos supporting a controversial warrantless wiretapping plan and detainee questioning techniques.
"Ashcroft's refusal created a tense standoff and was the only time in the attorney general's tenure that Bush was called upon to resolve a personnel dispute, the sources said.
"The process led the White House team to introduce a compromise choice -- Jack L. Goldsmith, a Defense Department lawyer then on leave from a teaching post at the University of Chicago Law School.
"But Goldsmith's tenure did not proceed as White House aides had expected. He went on to challenge the administration, rescinding or rewriting several of Yoo's most sensitive memos after unearthing what he called numerous flaws."Iran Watch
Glenn Kessler writes in The Washington Post: "President Bush's decision to shift policy and send a senior U.S. envoy to nuclear talks with Iran this weekend was made after increasing signs that Iran was open to possible negotiations and that international sanctions were having an impact on the Islamic republic, U.S. officials said yesterday.
"Secretary of State Condoleezza Rice pushed for the move in a meeting on Monday of Bush's top aides, and Bush's support suggests he increasingly is determined to put aside a possible military strike in an effort to reach a deal to end Iran's nuclear program in his final six months in office. . . .
"Bush accepted Rice's recommendation at the closely held meeting that also included Vice President Cheney, national security adviser Stephen J. Hadley, White House chief of staff Joshua B. Bolten and Burns. The move infuriated the administration's conservative critics, who said it was yet another sign the White House has lost its moorings.
"'This is a complete capitulation on the whole idea of suspending enrichment,' said former U.N. ambassador John R. Bolton. 'Just when the administration has no more U-turns to pull, it does another.'"
Elaine Sciolino and Steven Lee Myers write in the New York Times: "The increased engagement raised questions of whether the Bush administration would alter its stance toward Iran as radically as it did with North Korea, risking a fresh schism with conservatives who have accused the White House of granting concessions to so-called rogue states without extracting enough in return. . . .
"European officials hailed the decision as an important shift signaling that with just six months left, the Bush administration is seeking to avoid a war with Iran. . . .
"The presence of an American at the talks this weekend may help quiet the mounting calls in both the United States and Israel for military strikes against Iran. . . .
"Senator John Kerry, Mr. Bush's Democratic opponent in 2004, said the decision could be 'the most welcome flip-flop in recent diplomatic history.'"
And there could be even more in store. Ewen MacAskill writes in the Guardian: "The US plans to establish a diplomatic presence in Tehran for the first time in 30 years as part of a remarkable turnaround in policy by President George Bush.
"The Guardian has learned that an announcement will be made in the next month to establish a US interests section -- a halfway house to setting up a full embassy. . . .
"The creation of a US interest section would see diplomats stationed in Tehran for the first time since the hostage crisis that began when hundreds of students, as part of the Iranian revolution that led to fall of the Shah, stormed the US embassy in 1979 and held the occupants until 1981."
Washington Post editorial page editor Fred Hiatt first reported that such a move could be in the offing in his opinion column last month.Cheney Watch
Ben Pershing blogs for washingtonpost.com: "In the fourth and final Congress of the Bush administration, Vice President Cheney is playing a different and diminished role on Capitol Hill.
"Having served as the key deal maker on several high-profile issues in the first six years of the Bush presidency, the former House GOP Whip has been largely absent from the negotiating table in the 110th Congress, particularly during the last month's flurry of bipartisan legislative compromises."
But just because he's not visible doesn't mean he's not influential.
"'Cheney's involvement is much more active now behind the scenes rather than at the forefront,' said Candida Wolff, a former senior Cheney aide who also served as the White House's top legislative liaison."Access for Sale?
Sheryl Gay Stolberg and Adam B. Ellick write in the New York Times: "The White House on Wednesday disavowed the actions of a Houston businessman and Bush campaign fund-raiser who was caught on videotape apparently trying to trade access to top administration officials -- including Vice President Dick Cheney and Secretary of State Condoleezza Rice -- in exchange for six-figure donations to President Bush's library foundation.
"The businessman, Stephen Payne, founder of a Houston company called Worldwide Strategic Partners, was shown suggesting the donations in a video posted Sunday on the Web site of The Times of London, which filmed him surreptitiously as part of an investigation into corruption in foreign governments. . . .
"Mr. Bush's press secretary, Dana Perino, called Mr. Payne's actions 'inappropriate' and said that he did not represent the library or the foundation that is raising money for it. 'No one is allowed to try to say that there would be official action done under this administration in connection to any contribution that they may or may not make to the library,' she said."Intel Watch
Walter Pincus writes in The Washington Post: "The House yesterday passed by voice vote the fiscal 2009 intelligence authorization bill, which limits the funds available for covert actions next year until all members of the House intelligence panel are briefed on the most sensitive ones already underway.
"As included in the bill, 75 percent of money sought for covert actions would be held up until the briefings are held.
"If that provision remains in the bill when it reaches President Bush, his senior advisers will recommend he veto the measure, a White House statement said yesterday. Current law requires briefing on the most sensitive covert actions only for the chairmen of the House and Senate intelligence panels and their ranking minority members, the speaker of the House and the House minority leader, and the Senate majority and minority leaders.
"In its report on the bill, the committee said that the Bush administration has not kept lawmakers 'fully and currently informed,' and that without a briefing on all covert actions for the members of the House Permanent Select Committee on Intelligence, the panel cannot 'conduct its inherent oversight function.'"Flying West
Julianna Barbassa writes for the Associated Press: "The White House said President Bush will visit Northern California on Thursday to get a first-hand look at the wildfires that have ravaged hundreds of square miles and strained the state's firefighting resources.
"The president was expected to travel to Redding to get a briefing on the wildfires, then take an aerial tour to survey fire damage in the Shasta-Trinity National Forest with Gov. Arnold Schwarzenegger, according to White House officials. Bush also plans to attend a private Republican fundraising event in Napa."
But I wonder: What came first, the fundraiser or the wildfires? Could Bush be so cynical as to use a visit to a disaster area as an excuse not to pay full freight for a political trip?
Paul Payne writes for the Santa Rosa Press Democrat that a Republican source said 112 people would attend the fundraiser, donating about $850,000. That doesn't sound like something you throw together at the last minute.
Bush has private fundraisers tomorrow in Tucson and Houston.Having a Ball
Dana Milbank writes in The Washington Post: "It was another day of turmoil in the capital. The Federal Reserve chairman again tried to reassure jittery markets. The chairman of the Joint Chiefs of Staff said he wanted more troops in Afghanistan to put down the growing insurgency. And just before 4 p.m., President Bush stepped onto the South Lawn for what he called a 'historic' moment.
"'Play ball!' cried the commander in chief.
"Leaving his cares behind, Bush then sat down for more than an hour to watch 6- and 7-year-olds play T-ball, to unveil a 'Take Me Out to the Ballgame' postage stamp, and to lead the crowd in singing that anthem with the majesty of 'Hail to the Chief.' . . .
"Yesterday's T-ball game, the 19th of his presidency -- followed by a dinner last night in honor of Major League Baseball, the third of his presidency -- brought to at least 95 the number of sporting-related events he has participated in during his time in the White House. He has done no fewer than 18 such events so far this year -- already passing his previous record of 13 in both 2001 and 2007. . . .
"The game must have looked familiar to Bush in these final months of his presidency: dropped balls, swings and misses, and players running every which way. But in T-ball, at least, 'absolutely no score will be kept,' as [ESPN broadcasters] Mike and Mike put it, 'and everyone will leave as a winner.'"
David Lightman blogs for McClatchy newspapers about the Major League Baseball dinner: "'It doesn't get much better than this,' President Bush beamed Wednesday night, 'Country music in the Rose Garden and celebrating baseball.'"Late Night Humor
"For far too long the president has been forced to do a terrible job of pretending to care what people think of him. But not anymore, folks," Colbert said. "It is going to be so sweet when he pops by the World Court in the Hague and screams: 'Adios, from waterboard central! Then he can drop by the stock exchange, ring the bell, and scream: 'Goodbye from the world's weakest currency!' And then he can head over to Iraq, and as he's leaving, shout out: 'I break it, you bought it!'"
Jon Stewart contrasted what Bush and Federal Reserve Chairman Ben Bernanke said about the economy Tuesday morning. "One is like a glass half-full kind of guy -- and the other is an expert on the economy."
And here's Jay Leno via U.S. News: "With all this financial panicking going on, President Bush held a press conference and told everyone to take a deep breath. 'Take a deep breath.' That's a good advice, huh? The economy is tanking and he's giving Lamaze classes. . . . 'Take a deep breath.' Isn't that what he told the people of New Orleans when the water was rising?"Cartoon Watch