In the latest twist in the “Plame-gate” scandal, President George W. Bush has asserted executive privilege to block release of Vice President Dick Cheney’s interview with a special prosecutor about possible criminal violations in the leaking of a CIA officer’s covert identity.
Rep. Henry Waxman, chairman of the House Oversight Committee, promptly denounced the White House legal reasoning as “ludicrous,” noting that executive privilege covers advice that an aide gives the President, not responses to legal questions posed by a prosecutor about a possible crime.
Bush applied his broad assertion of executive privilege Wednesday at the request of Attorney General Michael Mukasey, who earlier had rebuffed congressional requests for interviews conducted with both Cheney and Bush about the disclosure of CIA officer Valerie Plame Wilson’s identity.
“I am greatly concerned about the chilling effect that compliance with the [House Oversight] Committee's subpoena would have on future White House deliberations and White House cooperation with future Justice Department investigations,” Mukasey wrote in a letter to Bush on Tuesday.
According to the letter Mukasey sent to Bush, the documents Waxman subpoenaed from the Justice Department includes "Federal Bureau of Investigation ("FBI") reports of the Special Counsel's interviews with the Vice President and senior White House staff, as well as handwritten notes taken by FBI agents during some of these interviews.
"The subpoena also seeks notes taken by the Deputy National Security Advisor during conversations with the Vice President and senior White House officials and other documents provided by the White House to the Special Counsel during the count of the investigation. 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," Mukasey's letter says.
Since becoming Attorney General in December 2007, Mukasey has balked at investigating crimes allegedly committed earlier by Bush administration officials – from torturing detainees to arranging political prosecutions – a "no-look-back" approach that drew criticism from the Senate Judiciary Committee.
In reaction to Bush’s assertion of executive privilege, Waxman said “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.”
The California Democrat also noted that special prosecutor Patrick Fitzgerald told the committee in a July 3 letter that Cheney had met with the FBI voluntarily and knew his answers could be disclosed at a public trial.
“Mr. Fitzgerald told us that ‘there were no agreements, conditions and understandings’ that limited Mr. Fitzgerald's use of the interview in any way,” Waxman said. “This unfounded assertion of executive privilege does not protect a principle; it protects a person.”
Waxman also accused Mukasey of applying a different standard for a Republican administration than was applied to its Democratic predecessors.
“Ten years ago,” Waxman said, “Attorney General Janet Reno, provided the Committee the FBI interviews of both President Clinton and Vice President Gore. Mr. Mukasey decided that a different rule should apply to Republican presidents than to Democratic presidents."
Actually, the Bush administration’s resistance to releasing the responses from a President and a Vice President in a criminal proceeding contrasts with precedents for both parties, including the appearances of Ronald Reagan, George H.W. Bush and Bill Clinton before various special prosecutors.
Waxman’s committee was scheduled to vote Wednesday to hold Mukasey in contempt for refusing to comply with the Cheney subpoena. However, Waxman postponed the vote after Bush’s assertion of executive privilege.
The “Plame-gate” affair dates back to 2003 when Valerie Plame Wilson’s husband, former U.S. Ambassador Joseph Wilson, went public with the fact that he had undertaken a fact-finding trip to Niger which had disproved President Bush’s claim that Iraq had sought to buy yellowcake uranium from the African nation.
As Wilson was going public with his knowledge of the Niger falsehood, Bush administration officials began leaking the fact that Wilson’s wife worked at the CIA and had a hand in arranging Wilson’s trip to Niger.
The leakers included Deputy Secretary of State Richard Armitage, White House political adviser Karl Rove and I. Lewis “Scooter” Libby, Cheney’s chief of staff.
Valerie Plame Wilson’s CIA employment was revealed in a July 14, 2003, article by right-wing columnist Robert Novak, effectively destroying her career. Two months later, a CIA complaint to the Justice Department sparked a criminal probe into the identity of the leakers.
Initially, Bush professed not to know anything about the matter, and several of his senior aides, including Rove and Libby, followed suit. However, it later became clear that Rove and Libby had a hand in the Plame leak and that Bush and Cheney had helped organize a campaign to disparage Wilson by giving critical information to friendly journalists.
In a statement Wednesday, Wilson said the "fact that the Attorney General is recommending the assertion of executive privilege reveals that this Department of Justice is as beholden to the White House as that run by former Attorney General Alberto Gonzales.”
In October 2005, Libby was indicted on charges of perjury and obstruction of justice. At Libby’s trial in 2007, his attorney, Theodore Wells, told jurors that Fitzgerald had tried to build a case of conspiracy against Cheney and Libby, and that the prosecution believed Libby may have lied to federal investigators and to a grand jury to protect Cheney.
“Now, I think the government, through its questions, really tried to put a cloud over Vice President Cheney," Wells said.
Rebutting Wells, Fitzgerald told jurors: "You know what? [Wells] said something here that we're trying to put a cloud on the Vice President. We'll talk straight. There is a cloud over the Vice President. He sent Libby off to [meet with New York Times reporter] Judith Miller at the St. Regis Hotel. At that meeting - the two-hour meeting - the defendant talked about the wife [Plame]. We didn't put that cloud there. That cloud remains because the defendant obstructed justice and lied about what happened."
Libby also told the FBI that it was "possible" that Cheney instructed him to disseminate to the press information about Plame’s identity.
Copies of Cheney’s handwritten notes also appeared to implicate Bush in the leak case.
Cheney's notes, which were introduced as evidence during Libby's trial, called into question the truthfulness of Bush's insistence that he had no prior knowledge of the sub rosa campaign against Wilson.
In an October 2003 note to then-press secretary Scott McClellan, Cheney demanded that the press office add Libby to a list of White House officials being cleared of any role in the Plame leak.
"Not going to protect one staffer + sacrifice the guy that was asked to stick his head in the meat grinder because of incompetence of others," Cheney wrote. However, the note revealed that Cheney had originally written "this Pres" before crossing that out and using the passive tense, "that was."
In other words, the original version suggested that Bush had asked Libby “to stick his head in the meat grinder,” an apparent reference to dealing with the Washington press corps.
In 2007, Libby was convicted of four counts of perjury and obstruction of justice and was given a 30-month jail sentence, but Bush commuted the sentence to spare Libby any jail time.
The still-secret interviews with Bush and Cheney took place in 2004.
According to sources knowledgeable about the Vice President’s interview, Cheney was specifically asked about conversations he had with senior aides, including Libby, and queried about whether he was aware of a campaign led by White House officials to leak Plame’s identity.
It is unknown how Cheney responded to those questions.
Waxman said Wednesday that the FBI interview report could be the "key document" that explains what Cheney’s role was in the leak.
"If there is one document that could pierce the cloud hanging over the Vice President, this is it," Waxman said.
On June 24, 2004, Bush was interviewed by Fitzgerald for 70 minutes about the Plame leak. The only other member of the Bush team in the room during the meeting was Jim Sharp, the private lawyer whom Bush hired, according to then-press secretary McClellan.
”The President ... was pleased to do his part to help the investigation move forward,” McClellan said. “No one wants to get to the bottom of this matter more than the President of the United States.”
However, with his invocation of executive privilege on Wednesday, Bush seems determined to make sure that the American public never gets to know what sits at the bottom of the “Plame-gate” scandal.
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