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{1} Introduction
Last week, when Patrick Fitzgerald filed the "Government's Response to Defendant's Third Motion to Compel Discovery," the public learned that Scooter Libby had testified to the grand jury that both President Bush and Vice President Cheney had authorized the leaking of classified information to journalists who supported their efforts in Iraq. This information came as no surprise to those following the case: in February, in another document Fitzgerald filed, he noted that Libby had testified that his "superiors" had authorized his leaking classified information.
Libby had served the administration in three high-ranking positions. He was an assistant to President Bush; the Vice President's Chief of Staff; and Cheney's national security advisor. Thus, in the White House, he had three "superiors": Bush, Cheney, and Andrew Card. Because the February release had indicated two or more superiors had authorized his leaking classified information, it was evident he meant Bush and Cheney. Andrew Card , while technically Libby's boss, lacked any authority to okay such leaks.
Fitzgerald's response, which is Document # 80 in the pretrial motions and rulings, has three very significant pieces of information that we should examine. Each has implications both legally and politically. Let's look at each of the three, starting with a brief quote from Document # 80, and then look at what it could mean.
{2} "Defendant further testified that he at first advised the Vice President that he could not have this conversation with reporter Miller because of the classified nature of the NIE. Defendant testified that the Vice President later advised him that the President had authorized defendant to disclose relevant portions of the NIE." (page 23)
This information does not connect either Bush or Cheney with Libby's discussing Plame's identification with journalists. But, obviously, it comes uncomfortably close.
More important, it raises questions about what Bush and Cheney told Mr. Fitzgerald, when he interviewed them as part of his investigation of the case. I am reminded of the decision from the US Court of Appeals regarding Matt Cooper and Judith Miller's attempt to avoid testifying, which was decided on February 15, 2005. In his concurring opinion, Circuit Judge Tatel noted, "Were the leak at issue in this case less harmful to national security .... I might have supported the motion to quash. Because identifying appellant's sources istead appears essential to remedying a serious breach of public trust, I join in affirming the district court's order compelling their testimony."(page 41) Likewise, for the Special Counsel to seek information from the president and vice president indicates he was aware they played some potentially significant roles.If either Bush or Cheney lied to Mr. Fitzgerald, they could face obstruction of justice charges.
Even without legal consequence, the president's being exposed does significant damage to his reputation. Unlike the domestic spying scandal, where he could respond by saying, "Everything changed on 9-11, and as president I must protect Americans," in this case he is shown to have been playing political games with intelligence. Perhaps more so than during any other time, older Americans are seeing Bush as playing a Nixon-like role. And Dick Cheney makes Spiro Agnew seem slightly less repulsive.
{3} "Because the government does not intend at this time to call three of these individuals -- Mr. Tenet, Mr. Hadley, and Mr. Rove -- defendant is not entitled to discovery based on the need to prepare to cross-examine those individuals." (page 9)
People familiar with Team Libby have great respect for the talents of William Jeffress, Joseph Tate, and especially Teddy Wells. Yet it appears that they might have misread the case that Mr. Fitzgerald is preparing. One can appreciate that they could have reasonably expected that Mr. Fitzgerald would call on Tenet, Hadley, and Rove. The fact that Fitzgerald has gone on record saying he does not plan to call them is fascinating.
Legally, especially in light of the outstanding series of reports by Jason Leopold on TruthOut, it seems possible that Hadley and Rove could be indicted by the new grand jury in early May. (See his 3-28 "Fitzgerald Will Seek New White House Indictments.") This raises questions about reports that Rove is cooperating with Mr. Fitzgerald. I am reminded of page 444 of Joseph Wilson's book, where he writes, "Apparently, according to two journalist sources of mine, when Rove learned that he might have violated the law, he turned on Cheney and Libby and made it clear that he held them responsible for the problem they had created for the administration." I have been told that there is significant distrust and anger between factions in the White House in recent days. Reminds me of the terminal Watergate phase of the Nixon administration, when paranoia replaced logic.
{4} "At some point after the publication of the July 6, 2003 Op Ed by Mr. Wilson, Vice President Cheney, defendant's immediate superior, expressed concerns to defendant regarding whether Mr. Wilson's trip was legitimate or whether it was in effect a junket set up by Mr. Wilson's wife." (page 19)
In his book "Chain of Command," Seymour Hersch describes "a year-long tug-of-war between the CIA and the Vice President's office." (page 227) On pages 236 and 238-9, Hersch describes the tug-of-war in greater detail. One senior intelligence official told him that many people believed that there was a small group of "disgruntled retired CIA clandestine operators" who were "so pissed at Cheney" that they attempted to "put the bite on " the OVP. Hersch notes that this could be viewed as "an extraordinary commentary on the level of mistrust, bitterness, and demoralization within the CIA under the Bush Administration."
In "The Rove Problem" (Time; 7-25-05), Nancy Gibbs noted, "The tensions between the White House and CIA had been rising steadily in the months before the Iraq invasion, as CIA analysts complained about evidence being distorted or ignored and the White House pushed back with complaints about the quality of intel they were getting. 'I know the analyst who was subjected to withering questioning on the Iraq-al-Qaeda links by Libby with Vice President Cheney sitting there,' says a CIA analyst."
The tensions between the OVP and CIA were obviously at risk of boiling over. The CIA analyst told Gibbs that Wilson's op-ed played into "the Administration (being) pissed at the CIA." Again, we see shades of that old Nixon paranoia. If Cheney believed that Wilson's trip was not "legitimate," but was "in effect a junket set up" by Plame, it seems worth considering the possibility that Cheney was involved in the plan to leak more than a NIE.
{5} Conclusion
In one of my favorite books, "We Talk, You Listen," Vine Deloria, Jr. writes, "The New Left has tried to create a sense of revolution by shouting slogans and marching up and down the streets. But when the hated establishment is left secure in its citadel, certain that it cannot be dislodged, then it has very little reason to pay attention to them and maintains the power to suppress them. The New Left should use the system to create uncertainty in the minds of Congressmen it dislikes so that all would tend to change lest lightening strike them in their next election. ...There has never been a ystem yet that would not gladly sacrifice one of its own for a moment's peace, no matter how brief. If the system is to be changed, then those who would change it should pinpoint its weak spot, its blockage points, and place aqll pressure on that one point until the blockage is cleared." (pages 65-66)
Legally, we can trust Mr. Fitzgerald to address the issues involving the crimes of Libby and Rove, and perhaps even VP Cheney. But politically, we have a wonderful opportunity. It is being reported that the President left the leaking of the NIE up to VP Cheney. The Office of the President is surely attempting to distance Bush from Cheney on this. Dick Cheney is the administration's weak spot, and the blockage point that we should be putting public pressure on right now.
Cheney is more unpopular than Spiro Agnew. While republicans will fight any immediate effort to punish Bush formally for his scandals, they will sacrifice Cheney. In my conversations with aides to moderate democratic congressmen, there is far more interest in going after Cheney this summer, than attacking Bush. I am not for a second excusing Bush, or attempting to suggest that democrats let him off. But there are many advantages to flushing Cheney out of the system first .... much as there was in flushing Agnew in the Watergate days.
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