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Indications of Obfuscation

By Dan Froomkin
Special to washingtonpost.com
Wednesday, March 21, 2007; 1:26 PM

Among the many lessons of the Scooter Libby trial is this one: That when the White House issues squirrelly statements under fire, the most cynical interpretations may well be the closest to the truth.

So there's really no longer any excuse for letting President Bush get away with carefully parsed denials, hairsplitting and non-answers.

In that spririt, my takeaway from Bush's comments yesterday on the firing of eight U.S. attorneys is that the president may well be aware that his critics are correct -- and that at least some of the prosecutors were ousted because top White House officials felt they had not performed their duties with sufficient loyalty to the Republican Party.

He certainly didn't deny it.

Here's the transcript of Bush's comments. Consider his carefully chosen -- and carefully repeated -- response to a question from Deb Riechmann of the Associated Press

"Q Mr. President, are you still completely convinced that the administration did not exert any political pressure in the firing of these attorneys?

"THE PRESIDENT: Deb, there is no indication that anybody did anything improper. And I'm sure Congress has that question. That's why I've put forth a reasonable proposal for people to be comfortable with the decisions and how they were made. Al Gonzales and his team will be testifying. We have made available people on my staff to be interviewed. And we've made an unprecedented number of documents available.

"Q Sir, are you convinced, personally?

"THE PRESIDENT: There's no indication whatsoever, after reviews by the White House staff, that anybody did anything improper."

That's a far cry from saying: I am personally convinced there was no political pressure. Bush didn't deny that there was political pressure or that he was aware of it. All he denied was the existence of any "indication" that anyone did anything he considers "improper."

Much like "torture", which he refuses to define, the president didn't say what he means by "improper" or "indication" yesterday.

Given that the U.S. attorneys serve at his pleasure, does he think there is any such thing as an improper firing? And what does he mean by "indication"? Does he mean a public indication? Would anything short of a public paper trail leading to a smoking gun qualify as an indication?

I doubt "no indication that anybody did anything improper" will go up there in history with Scott McClellan's "If anyone in this administration was involved in it, they would no longer be in this administration" or Al Gore's "no controlling legal authority" -- but maybe it should.

And consider this: Taken as a whole, Bush's statement was full of assertions that it's hard to consider anything but massive whoppers.

The champion of a "unitary executive" suddenly talking about the sanctity of the separation of powers? A man known to operate almost exclusively in a bubble of flatterers suddenly lashing out against a precedent that might lead to a president not getting candid advice?

And does Bush really think anyone other than his staunchest supporters would consider "reasonable" his proposal to make Karl Rove and other top aides available for private interviews with congressional investigators?

The proposal, as put forth by new White House counsel Fred Fielding, is transparently an attempt to let Bush's aides get their stories out without facing public accountability and scrutiny -- and without any penalty for lying under oath.

"Such interviews would be private and conducted without the need for an oath, transcript, subsequent testimony, or the subsequent issuance of subpoenas," Fielding wrote. "Such interviews may cover, and would be limited to, the subject of (a) communications between the White House and persons outside the White House concerning the request for resignations of the U.S. Attorneys in question; and (b) communications between the White House and Members of Congress concerning those requests," Fielding added, ruling out any questions about what may very well have been all-important discussions within the White House itself.

So what is the president's strategy here? Undoubtedly, the prospect of it becoming open season in Washington for White House subpoenas is stiffening his spine. But even at a 30 percent approval rating, Bush is most likely still hopeful that he can bully Congressional Democrats into blinking. And he is probably counting on the press to help him, by shifting their attention from the firings themselves to the conflict over executive privilege, and by starting to hint that the Democrats may have overreached.

With the press continuing to uncritically relate even Bush's most equivocal statements as if he and his administration aren't suffering a staggering credibility problem, he may already be halfway there.

The Coverage

Michael Abramowitz and Paul Kane write in The Washington Post: "President Bush sought yesterday to defuse the controversy over the firings of U.S. attorneys, offering strong support for embattled Attorney General Alberto R. Gonzales while proposing to make Karl Rove and other top aides available for private interviews with congressional investigators.

"The White House, however, limited the kinds of questions the aides would answer and said the interviews may not be conducted under oath or transcribed. The conditions enraged congressional Democrats, who vowed to go ahead with plans to issue subpoenas as early as today that would compel the aides to testify. . . .

"The president seemed eager to portray the scandal as a partisan sideshow. . . .

"Democrats suspect that partisan politics may have had a hand in the dismissals because some of the prosecutors were investigating corruption by GOP officials. One of the e-mails released last week showed that Rove, Bush's top political adviser, had asked in early 2005 about a plan to fire U.S. attorneys. Though the e-mail does not suggest Rove's point of view, Democrats want to put him under oath to find that out. . . .

"Although past administrations have allowed White House aides to testify before Congress -- and Bush himself permitted his then-homeland security adviser Tom Ridge to testify -- Bush said he is worried about setting 'precedents that would make it difficult for somebody to walk into the Oval Office and say, "Mr. President, here's what's on my mind."'"

Sheryl Gay Stolberg writes in the New York Times that Bush and Congress "appeared headed toward a constitutional showdown over demands from Capitol Hill for internal White House documents and testimony from top advisers to the president. . . .

"Responding defiantly on a day in which tension over the affair played out on multiple fronts, Mr. Bush said he would resist any effort to put his top aides under 'the klieg lights' in 'show trials' on Capitol Hill, and he reiterated his support for Attorney General Alberto R. Gonzales, whose backing among Republicans on Capitol Hill ebbed further on Tuesday. . . .

"Senator Harry Reid, the majority leader, suggested that the administration had misled him, and released a Justice Department letter that said it was not aware that Mr. Rove had played any role in the decision to appoint one of his former deputies as United States attorney in Arkansas.

"'I want to hear Karl Rove testify under oath about the role he played in this whole affair,' Mr. Reid said. . . .

"'The time for slippery explanations is over,' [Senator Dianne Feinstein of California] said Tuesday."

Ron Hutcheson and Margaret Talev write for McClatchy Newspapers: "Democrats demanded their public testimony under oath and dismissed Bush's offer to cooperate as a sham. . . .

"'Testimony should be on the record and under oath. That's the formula for true accountability,' emphasized Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee."

Laurie Kellman writes for the Associated Press that the House Judiciary subcommittee on commercial and administrative law this morning approved -- but did not issue -- subpoenas for Rove, former White House Counsel Harriet Miers, their deputies and Kyle Sampson, Gonzales' chief of staff, who resigned over the uproar last week.

Opinion Watch

The New York Times editorial board writes: "Mr. Bush's proposal was a formula for hiding the truth, and for protecting the president and his staff from a legitimate inquiry by Congress. Mr. Bush's idea of openness involved sending White House officials to Congress to answer questions in private, without taking any oath, making a transcript or allowing any follow-up appearances. The people, in other words, would be kept in the dark. . . .

"It is hard to imagine what, besides evading responsibility, the White House had in mind. Why would anyone refuse to take an oath on a matter like this, unless he were not fully committed to telling the truth? And why would Congress accept that idea, especially in an investigation that has already been marked by repeated false and misleading statements from administration officials?

"The White House notes that making misrepresentations to Congress is illegal, even if no oath is taken. But that seems to be where the lack of a transcript comes in. It would be hard to prove what Mr. Rove and others said if no official record existed.

"The White House also put an unacceptable condition on the documents it would make available, by excluding e-mail messages within the White House. Mr. Bush's overall strategy seems clear: to stop Congress from learning what went on within the White House, which may well be where the key decisions to fire the attorneys were made."

On Executive Privilege

Adam Liptak writes in the New York Times that "the invocation of executive privilege . . . is the constitutional equivalent of a declaration of war. . . .

"Executive privilege protects confidential deliberations within the executive branch in some circumstances, even in the face of a subpoena from the courts or from Congress. It is meant to ensure that the president receives candid advice from aides, without fear that they will be hauled before Congress or a grand jury to explain themselves. The Bush administration has few equals in its commitment to a broad conception of executive authority, and it has on several occasions argued for an expansive understanding of executive privilege and similar protections. . . .

"But even though the legal concept has been in use for more than 200 years, its scope remains largely unsettled.

"One reason is that clashes between the executive branch and Congress over the privilege, while not uncommon, seldom result in an impasse or find their way into the courts. They are, probably fittingly, worked out through political accommodation.

"'What usually breaks the deadlock,' Louis Fisher, a specialist in constitutional law at the Library of Congress, wrote in 2004 in 'The Politics of Executive Privilege,' 'is a political decision: the determination of lawmakers to use the coercive tools available to them, and political calculations by the executive branch whether a continued standoff risks heavy and intolerable losses for the president.'"

And Liptak notes that "White House aides have testified before Congress relatively frequently. A 2004 report of the Congressional Research Service cites scores of examples in the last 60 years."

Bloomberg's Holly Rosenkrantz and Edwin Chen quote Allan Lichtman, a professor of history and politics at American University in Washington.

"'Normally the White House loses these confrontations,' he said, recalling the Supreme Court ruling during the Watergate era when then-President Richard Nixon was ordered to turn over White House tape recordings of conversations.

"Courts in the past have ruled that 'a president does not have absolute privilege to say, "The White House has immunity because I need candid advice," Lichtman said."

Tony Snow's View

Glenn Greenwald, blogging for Salon, finds a gem. Here's pre-press secretary Tony Snow in an op-ed headlined "Executive Privilege is a Dodge" in the St. Louis Post-Dispatch on March 29, 1998:

"Evidently, Mr. Clinton wants to shield virtually any communications that take place within the White House compound on the theory that all such talk contributes in some way, shape or form to the continuing success and harmony of an administration. Taken to its logical extreme, that position would make it impossible for citizens to hold a chief executive accountable for anything. He would have a constitutional right to cover up.

"Chances are that the courts will hurl such a claim out, but it will take time.

"One gets the impression that Team Clinton values its survival more than most people want justice and thus will delay without qualm. But as the clock ticks, the public's faith in Mr. Clinton will ebb away for a simple reason: Most of us want no part of a president who is cynical enough to use the majesty of his office to evade the one thing he is sworn to uphold -- the rule of law."

Ever So Reasonable

Bush used the word "reasonable" five times in his brief remarks yesterday, complete with hand-gestures suggesting the utmost humility.

Richard Wolffe and Holly Bailey write for Newsweek: "The president was in a reasonable mood. In fact, he couldn't stop pointing out just how reasonable he was being, in discussing the ongoing controversy over the firing of eight U.S. attorneys at a press conference late Tuesday afternoon."

Wolffe and Bailey note some of the inconsistencies among his assertions: "But perhaps the most interesting, um, irony in the president's press conference was his approach to Democrats on Capitol Hill. They'd better not launch off on a partisan fishing expedition, Bush warned. They'd better not 'waste time' investigating the firings, or 'promote confrontation.' There were too many important issues to address. But the firings themselves smack of a partisan fishing expedition in the eyes of the president's critics. After all, one of the criteria in weighing who got canned was whether prosecutors were 'loyal Bushies,' as Gonzales's former chief of staff, Kyle Sampson, wrote in one telling e-mail. And arguably, the firings themselves were what was distracting Congress and the country from more vital matters at hand. In other words, Bush seemed to be saying, it's fine for me to play politics. But it's not OK for the Democrats to do it."

The Document Dump

I wrote a fair amount in yesterday's column about the latest Justice Department document dump, which is mostly chaff.

Having had a chance to look through those 3,000 pages more thoroughly, however, Dan Eggen and Amy Goldstein write in The Washington Post that they "show a confused and divided Justice Department under siege in a political crisis largely of its own making. . . .

"The documents also show that the White House was more closely involved than had been known in attempting to contain the controversy as it began to spin out of control in recent weeks. Just two weeks ago, on March 5, White House lawyer William Kelley personally oversaw a meeting called to prepare and edit testimony by William Moschella, the principal associate deputy attorney general. Moschella told the House Judiciary Committee the next day that the White House was only tangentially involved in the dismissals. . . .

"A Justice spokesman sought to mislead a reporter by questioning the accuracy of his sources, as other officials revised the administration's story and deflected queries from Congress about the firings. The dismissals would eventually be revealed as the result of a two-year-old plan, hatched in the White House, to sack U.S. attorneys seen as disloyal to the administration. . . .

"For all their vivid detail, the e-mails and other records shed little light on the Bush administration's motives for carrying out the firings in the way it did. The new documents also provide little evidence that Justice officials sought to interfere with public corruption probes, as many Democrats and some of the prosecutors have alleged."

Marisa Taylor and Greg Gordon write for McClatchy Newspapers: "Internal Justice Department e-mails written before the firings of eight U.S. attorneys and during the turmoil that followed continue to raise questions about the real reasons for their ousters."

And here's another lack of "indication" to consider: "Less than a month before the firings, Miers said she would consider whether the president should be brought in. Three days before the firings, the White House signed off the plan, although White House spokeswoman Dana Perino said this week that 'there's no indication it ever was' brought to President Bush's attention."

Stolberg writes in the New York Times that the documents "show how unprepared the Justice Department was early this year for the response. On Dec. 7, 2006, the day the prosecutors were told they were being removed, Gerald Parksy, a prominent California Republican fund-raiser and friend of the president's, 'put in an outraged call' to the White House protesting the dismissal of the United States attorney in San Francisco, Kevin Ryan, according to an e-mail message from a White House official to the Justice Department.

"Mr. Kelley, the deputy White House counsel, asked one Justice Department official to provide more details of the firings to White House political aides so that they could help Mr. Rove answer calls about the action. As the uproar mounted, officials at the department headquarters scrambled to prepare a list of reasons for removing the prosecutors, struggling at times to find substantial causes, particularly for Daniel Bogden in Nevada, Margaret Chiara in Michigan and David C. Iglesias of New Mexico."

Richard A. Serrano writes in the Los Angeles Times: "Senior Justice Department officials began drafting memos this month listing specific reasons why they had fired eight U.S. attorneys, intending to cite performance problems such as insubordination, leadership failures and other missteps if needed to convince angry congressional Democrats that the terminations were justified."

Elizabeth Williamson writes in The Washington Post: "A tad passive-aggressive, that Justice Department document dump Monday night, House staffers say."

And blogger Josh Marshall points out that one of the readers responding to his blog's request for help going through the documents noticed that the e-mails seem to have an 18-day gap between November 15 and December 4.

"The firing calls went out on December 7th," Marshall writes. "But the original plan was to start placing the calls on November 15th. So those eighteen days are pretty key ones."

Gonzales Watch

Jan Crawford Greenburg reports for ABC News: "White House sources say President Bush is not considering replacing Gonzales, and sources close to Gonzales say the attorney general is prepared to 'hang tough.' They now see this fight as one of principle -- Bush believes Gonzales did nothing wrong, that advisers did nothing wrong -- and that Bush has unilateral power to replace all US attorneys. Bush will not demand Gonzales' resignation based, as he sees it, on a 'successful effort to make something out of nothing.'

"Moreover, there is growing concern inside the administration that a Gonzales resignation would only embolden Democrats to push for more."

Al Kamen writes in The Washington Post: "In the traditional Washington resignation kabuki, the obligatory presidential support call often signals imminent resignation. The call usually follows what's called a distance dance -- White House spokesman Tony Snow's 'we hope so' response to reporters Friday when asked if Gonzales was staying.

"Such comments usually coincide with the ritual floating of the usual suspects for a replacement. Then the White House insists, as it did yesterday, the rumors that they are looking for replacements are absolutely false."

And Slate has launched its Gonzo-Meter. "Today's Chance of a Gonzales Departure: 55 percent."

Patriot Act Revision

James Rowley writes for Bloomberg: "The Senate voted 94-2 to repeal a year-old law that Democrats said gave Attorney General Alberto Gonzales too much power to name temporary U.S. prosecutors without senators' consent. . . .

"The little-noticed 2006 provision, added to the extension of the USA Patriot Act, allowed the attorney general to make temporary appointments of U.S. attorneys for indefinite periods of time."

Iglesias Watch

Fired New Mexico U.S. attorney David C. Iglesias writes in a New York Times op-ed that "it seems clear that politics played a role in the ousters. . . .

"Politics entered my life with two phone calls that I received last fall, just before the November election. One came from Representative Heather Wilson and the other from [Pete] Senator Domenici, both Republicans from my state, New Mexico."

Both apparently wanted Iglesias to file corruption charges against local Democrats in time to influence the November election.

"A few weeks after those phone calls, my name was added to a list of United States attorneys who would be asked to resign -- even though I had excellent office evaluations, the biggest political corruption prosecutions in New Mexico history, a record number of overall prosecutions and a 95 percent conviction rate."

McKay Watch

William Yardley writes in the New York Times: "John McKay, the former United States attorney for western Washington and one of the prosecutors whose abrupt dismissal has brought intense criticism to the Justice Department, said Tuesday that Attorney General Alberto R. Gonzales had allowed the department to succumb to political pressure and that he should be held responsible. . . .

"In an interview on Tuesday, Mr. McKay said he still did not know if his dismissal was linked to the 2004 election, in which his office ultimately decided there was no evidence of voter fraud despite accusations by some Republicans that it had cost them the race. But he described several events, including his failed pursuit of a federal judgeship, that he said seemed connected."

At a White House interview regarding the judgeship, the first question McKay was asked was about the race.

"Three weeks later, he said, documents now show his name on a list of prosecutors to be dismissed.

"'I'm in the White House on Aug. 22, I'm on the list on Sept. 13,' he said."

Lam Watch

Jennifer Steinhauer and Eric Lipton write in the New York Times: "Democrats in Congress and others have suggested that Ms. Lam, the former United States attorney in San Diego, was ousted largely to stymie her investigations of Republicans and Defense Department officials, after a prosecution of a Republican congressman from California.

"But interviews with law enforcement officials in California and an examination of e-mail released by the Justice Department demonstrate that Ms. Lam was a source of longstanding vexation to the department, with which she differed on strategy."

Steinhauer and Lipton, however, seem to overlook the possibility that the complaints about Lam's immigration stance were a post-hoc rationalization. For instance, the severe memos about these "longstanding vexations" appear to have come after she notified the department that she intended to execute search warrants on a high-ranking official of the Central Intelligence Agency as part of her expanding investigation of elected Republicans.

Fitzgerald Watch

John Kass asks in his Chicago Tribune opinion column: "How many conversations did Karl Rove--the political Rasputin of the Bush White House--have with top Illinois Republicans about U.S. Atty. Patrick Fitzgerald?

"Ten? Fifty? None? . . .

"Answers might tell us why Fitzgerald, honored in 2002 as one of the top prosecutors in the Justice Department -- and the fed most feared by the bipartisan political Combine that runs Illinois -- was abruptly downgraded in March 2005.

"According to news reports this week, Fitzgerald was downgraded in a 2005 Justice Department memo sent to the White House and was listed among federal prosecutors who 'had not distinguished themselves.'"

But Kass notes that "Fitzgerald has indicted and convicted bushels of politicians here."

Testy Testy

Scott Canon and Jason Noble write in the Kansas City Star: "President Bush continued his drumming for less reliance on foreign oil Tuesday, using two Kansas City-area auto assembly plants as his backdrop. about Bush's visit yesterday to two Kansas City-area auto assembly plants."

And they provide this anecdote: "Besides his considerable security contingent, the chief executive was accompanied by Deputy Chief of Staff Karl Rove and Press Secretary Tony Snow.

"A reporter approached Rove to ask him what he thought of rumors that former Missouri Sen. Jack Danforth could replace embattled Attorney General Alberto Gonzales. 'How about you go over there and do your job,' Rove replied, pointed back to the media pool."

Cheney's Hospital Visit

Deb Riechmann writes for the Associated Press: "Vice President Dick Cheney went to the hospital Tuesday after experiencing discomfort in his left lower leg, where a blood clot was recently discovered.

"After consulting with his doctors, Cheney was asked to return to George Washington University Hospital for repeat ultrasound imaging of the deep venous thrombosis, or clot, in that leg, said spokeswoman Megan McGinn."

But on CNN, Ed Henry reported shortly before noon on the difficultly of getting a straight answer from Cheney's office: "CNN confirming right now from the vice president's office, Megan McGinn, spokeswoman saying that the vice president is over at George Washington Medical Center right now. She is saying this is just a routine checkup on his leg, that deep vein thrombosis that you know popped up after the vice president's long trip overseas recently.

"What his office is stressing right now is that there was no specific episode this morning, that it's just a follow up visit with his doctor. And that he's at his doctor's office right now, not in the hospital area, of George Washington University Medical Center.

"And according to Megan McGinn, his spokeswoman this is not an emergency situation. But I want to note that about a half hour ago when I first called the vice president's office, they said that he was in his West Wing office and essentially there was nothing going on. But then they said, hold on, we're getting more information, we're going to have to call you back in a few minutes."

So first he wasn't at the hospital at all. Then he was, but it was for a routine checkup. Then he went in because his leg hurt, but everything's fine.

Are we really supposed to take this latest version on face value?

Veto Threat

Mary Beth Sheridan writes in The Washington Post: "The White House stepped up its opposition yesterday to legislation that would give the District a full seat in the House of Representatives, saying that if it reaches President Bush, his top advisers 'would recommend that he veto the bill.' . . .

"A Bush spokesman said last week that the White House opposed the bill on constitutional grounds. But yesterday's declaration was stronger. It came in a Statement of Administration Policy, a document that the White House typically issues days before Congress votes on a measure."

The Washington Post editorial board writes: "It's a toss-up as to which is more disappointing about the White House's announcement of opposition to D.C. voting rights: the cynical timing or the hypocritical reasoning. Only when legislation giving representation to the District picked up momentum did the Bush administration break years of studied silence. Then it used its supposed concern for the Constitution to justify the continued disenfranchisement of a city of half a million people."

Blogger on the Case

Blogger Eli Sanders is trying to get to the bottom of the story of whether Ken Hutcherson, "the famously anti-gay pastor at Antioch Bible Church, just outside of Seattle" is or is not, as he has been claiming, "a newly-minted White House 'Special Envoy.'"

Cartoon Watch

Ann Telnaes on four years of war; and Tom Toles on the fifth.

Late Night Humor

Via U.S. News, Jay Leno: "This afternoon, President Bush held a news conference where he accused the Democrats of playing politics with the firing of the US attorneys. You know, the attorneys he fired for not playing politics?"

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