"Upon hearing about these events, jurors may suspect that Mr. Libby ...

[understandinglife]

... mishandled classified information or did something else wrong when he made these disclosures - even if the government does not argue that Mr. Libby's actions were unauthorized or illegal. The defense has the right to argue at trial that Mr. Libby's actions with respect to the NIE were authorized at the highest levels of the Executive Branch, and would be entitled to bolster such arguments with documents and testimony.

<clip>

But efforts of Mr. Libby and other officials in the OVP to deflate criticism of the Administration cannot be neatly separated from the actions of officials from other agencies - particularly the CIA, the White House, and the State Department. For example, Mr. Libby worked with the CIA and the NSC to determine how to respond to the controversy over the sixteen words. The indictment itself refers to Mr. Libby's alleged concerns about how the CIA was responding to the controversy. The indictment also describes actions by officials at the White House, including senior advisor Karl Rove and former press secretary Ari Fleischer, who both spoke to reporters about Mr. Wilson.

Now, with the government's injection of the NIE story into this case, the government has placed even more emphatically at issue the actions of the White House - including President Bush - in responding to media criticism about the 16 words.

<clip>

Link (graciously hosted at the Talk Left webserver):

http://talkleft.com/libbyresp412.pdf

Let's reminisce a bit about Paula Jones. As I posted in October, 2005:

Thanks to Paula Jones, the Wilsons can force Bush and Cheney to testify under oath while they are both still in office.

In an interview yesterday, 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 Bill Clinton could go forward immediately, a decision that was hailed by conservatives at the time.

Link:

http://www.bloomberg.com/apps/news?pid=10000087&sid=aSuj1d8CcYAk&refer=top_world_news#

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=104&topic_id=5079995&mesg_id=5082925

I suspect Team Libby is aware of the ruling and their client has every reason to call his bosses to the stand.

Beyond that, my sense of the inertia of item # 9 on page 5 of the Libby indictment is ever more the overwhelming force of Fitzgerald's investigation. I suspect that force is intended to ensure that not just Libby, but Cheney, (and perhaps others) roll on Bush.

#9, p.5: "On or about June 12, 2003, LIBBY was advised by the Vice President of the United States that Wilson's wife worked at the Central Intelligence Agency in the Counterproliferation Division. LIBBY understood that the Vice President had learned this information from the CIA."

Link:
http://www.dcd.uscourts.gov/04ms407-I.pdf

http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=104&topic_id=5205585

In this context, I also think it worthwhile for everyone to consider, once again, the thoughtful and well referenced analysis by Richard M Mathews entitled Indicting a Sitting President:

Precedent exists to indict a Vice President.

Vice President Aaron Burr was subject to indictments in two states while still in office. Burr stayed out of those two states to avoid prosecution.

In the case of Spiro Agnew, Solicitor General Robert Bork filed a brief arguing that, consistent with the Constitution, the Vice President could be subject to indictment and criminal prosecution. While still Vice President, Agnew plea bargained a deal in which he plead "no contest" to tax evasion. He resigned the same day he entered his plea.

For a President, there is no clear precedent one way or another. The closest is the case of Nixon. The Grand Jury reportedly wanted to indict Nixon. Prosecutor Jaworski convinced them to avoid the issue of whether the President may be indicted by naming him as an un-indicted co-conspirator. This was sufficient to get a subpoena for Nixon's records including the tapes. Nixon argued that the subpoena was invalid because he was not subject to indictment. The Supreme Court sidestepped the indictment issue by ruling that they did not need to answer that question in order to reach their conclusion that the subpoena was valid. United States v. Nixon, 418 U.S. 683, 687 n. 2 (1974).

There is not a single word in the Constitution that supports a claim that the President cannot be indicted. On the contrary, the Constitution merely says this about impeachment:

Article I, Section 3, Clause 7:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Article II, Section 4:

The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Note that in the above sections the Constitution treats impeachment of the President exactly the same as impeachment of any other Officer. The only place where the Constitution treats the President differently with respect to impeachment is in that the Chief Justice sits as the presiding officer in the Senate trial of a President:

Article I, Section 3, Clause 6:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Since the Constitution treats the President identically to all other Officers ....

Much more at the link:

http://www.afterdowningstreet.org/?q=node/3820

And, with comments at dKos:

http://www.dailykos.com/story/2005/10/18/22350/485

And, with comments to my DU post of December 17, 2005:

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=104&topic_id=5621982&mesg_id=5623016

Well beyond compelling testimony from both Bush and Cheney, Team Libby may inadvertently or intentionally strengthening a case for indictment of both Cheney and Bush, and, ironically using Libby's neoconster-supplied defense funds to do just that.


George W. Bush willfully violated National Security to cover-up his willful launch of a war of aggression and illegal occupation of Iraq.

[stop the bleeding]

1. ironic is right

great post

on edit: here is a DU link with both sets of PDF's not just the 29 pages that your link has

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=364x920067

there was a total of 54 pages released last night.

[understandinglife]

4. Thank you for that DU link!!! Much appreciated.

Peace.

[flashsmith]

8. I never understood

why a President has to be impeached first before he/she can be charged and convicted of a crime. Wasn't there a judge a while back who was convicted and jailed that refused to resign? He kept drawing a salary until they impeached him. Why can't the President be tried/convicted/jailed/executed prior to impeachment? He can still stay in office, it's just that his office would be in a jail cell or cemetery. If the Senate doesn't think he can perform his duties from jail or the grave, then they can impeach him.

[understandinglife]

11. Well, we know Nixon came really, really close to being indicted and, ...

... I suspect Georgie boy make actually set the record for being the first.

Only difference between Tricky Dick and Georgie boy is that the trickster was actually elected President - twice.


Peace.

[hootinholler]

23. A President doesn't

All the Constitution says is that the President is the President until he's replaced or impeached by the House and convicted in the Senate.

I can't imagine an effective President governing from jail, but, it would be constitutional.

-Hoot

[Duer 157099]

2. Not to be flippant or anything, but

all of that assumes some sort of respect for the "rule of law".

We *know* that's not the case.

This administration has demonstrated time and again that they have no qualms about making the rules up as they go along. And that no serious challenges have been made.

And it's not hyperbole to say so, as it might have been at some point in the past.

[vickitulsa]

10. A valid point. I've worried about this too.

However, it seems to me there is a significant factor determining whether a President can get away with lawless behavior we should consider: the mood of the people. Since Bush&Co manipulated public sentiment before launching the illegal war in Iraq, it was easy for them to get away with that. As long as public support for and willingness to believe GWB was strong, he got his way.

He ain't exactly gettin' his way at every turn these days, and I hope that portends well for the future.

I imagine even those in his base who have not yet abandoned Junior would be hard pressed to say they still believe him every time he opens his mouth. For partisan reasons, they may prefer him to Dems, but that doesn't mean they would go to the mat for him when he's proven to be a liar, and through his lies, a murderer-in-chief among other sins.

I think Fitz is wise to build his case very carefully and solidly, so that when he challenges the boy king on his lies, the truth will emerge and the public will demand an end to his evasion of guilt.

[AndyA]

3. Karma has a way of coming back around and evening things up.

And Bush/Cheney/Republicans have a LOT of bad Karma waiting for them. Sucks for them, doesn't it?

[vickitulsa]

5. Way ta go, UL! I so much appreciate

the way you collect information and present it, making things easier for us when we ponder complicated issues. (Certain of our government agencies could use someone with your skills!)

I've been wondering ever since Libby was indicted just how it will play out. With his own defense team logically bound to do all they can to relieve their client of blame, it seemed obvious that there would be some very clear finger-pointing back toward the White House. At that point, the interests of Scooter Libby and his former bosses, both Cheney and Bush, parted ways.

And I hoped fervently that Libby's lawyers were good enough to mount the legal challenges necessary to obtain testimonies and documents that would clearly reveal culpability of both the VP and P. I'm still hoping! -- and from what you present here, it's looking good so far.

[caledesi]

12. Me too! I could actually understand it.

[pacalo]

6. The neocon-funded defense wants documents that pertain to

Bush/Cheney involvement -- or should I say, Bush/Cheney want to know what Fitzgerald has on them. And they're worried about the "media storm" in regard to Bush/Cheney:

On Page 6:

Far from focusing on what Mr. Libby said and did, the government’s disclosure focused on the role of two other players in the matter, President Bush and Vice President Cheney, setting off an avalanche of media interest.1 In other words, the government has effectively conceded that the case extends far beyond Mr. Libby, but refuses to provide defendant with discovery that reflects that fact.

[understandinglife]

7. Yes, and I suspect Team Libby is confronting the reality that Scooter ...

... is quickly approaching the decision as to how willing he is to be part of the steamroller vs only pavement.

They've likely all realized (for many months) that Fitzgerald is driving a big one; they may be beginning to realize it's huge.


Peace.

[pacalo]

19. I'm just savoring your information. Good job, UL!

:toast:

[understandinglife]

9. Link to Christy Hardin Smith's analysis of the latest filing:

http://www.firedoglake.com/2006/04/13/new-libby-filing-a-bit-of-analysis

As Christy notes (relevant to the items in the OP):

On page 11, Team Libby gives a shout out to George and Dick in this form:

The defense has the right to argue at trial that Mr. libby’s actions with respect to the NIE were authorized at the highest levels of the Executive Branch, and would be entitled to bolster such arguments with documents and testimony.

Is it me, or does that say "I’m gonna subpoena your ass unless I see a big, fat pardon."?

Yep.


Peace.

[hootinholler]

13. Nice dots. I disagree with the last sentence though...

George W. Bush willfully violated National Security to cover-up his willful launch of a war of aggression and illegal occupation of Iraq.

IMNSHO, that motive was a cover for the real desire: the dismantling of Brewster-Jennings. Two threads woven through these criminal's careers are Iranian Fundamentalism and the sale of WMD parts.

Please remember these guys learned this modus operandi felating Tricky Dick. They then applied it whilst they felated Ford learning to coordinate the levers of the Executive. They thence applied this knowledge, I reference: Iranian coup and hostage crisis pre-Raygun, Iran-Contra, Pakistani bomb parts, and a myriad of other actual criminal acts like lying to congress in a report required by law. Yes people that is an actual crime with actual penalties. Here, it's pretty clear to me in Title 18 Part 1 Chapter 47 Section 1001 of the United States Code:

1001. Statements or entries generally
(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title or imprisoned not more than 5 years, or both.
(b) Subsection (a) does not apply to a party to a judicial proceeding, or that party’s counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding.
(c) With respect to any matter within the jurisdiction of the legislative branch, subsection (a) shall apply only to—
(1) administrative matters, including a claim for payment, a matter related to the procurement of property or services, personnel or employment practices, or support services, or a document required by law, rule, or regulation to be submitted to the Congress or any office or officer within the legislative branch; or
(2) any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate.

Clearly, the SOTU address was felonious if not treasonous. Paragraph 3 means up to 5 years of incarceration.

So, we know that a sitting official is indictable, we know at least one section of law that was blatantly broken, where is a prosecutor? Can we form an ad-hoc Grand jury? So, DU lawyers, can I sue the government for failure to prosecute? Is that not a violation of our rights? Are we not A Class? I'll start a legal fund today if I have a case. Perhaps I'll ask the ACLU.

-Hoot

[stop the bleeding]

14. good post Hoot

very well laid out

[hootinholler]

18. Thanks, even a blind owl can find a mouse now and then. n/t

[understandinglife]

15. "So, DU lawyers, can I sue the government for failure to prosecute?" ...

... excellent question and rationale, Hoot. I do hope you ask the ACLU, asap. And, I'd certainly support a legal fund focused on such a complaint.

Thank you for your always insightful comments.


Peace.

[hootinholler]

17. Thanks...

I called. There is basically no way to compel a prosecutor to take a given case. If you can show damage caused by them not taking a case, peraps you might begin to have a case.

It's a tagled web, and I'd like to hear from some lawyers about this.

-Hoot

[DemReadingDU]

16. Lots of good analysis, K&R!

Thanks everyone!

[troubleinwinter]

20. This is VERY interesting... that a sitting pres. could be indicted.

[kpete]

21. Thanks

I enjoyed that..

[DoYouEverWonder]

22. Not only might Cheney and Bush have to testify

but also thanks to Paul Jones, so can the Secret Service. Remember that one?

[understandinglife]

28. "but also thanks to Paul Jones, so can the Secret Service." Bingo!

Most excellent!

[Time for change]

24. How ironic

I was very much against the ruling in the Paula Jones case. I thought it was ridiculous that a sitting President could be forced to spend so much time defending himself with respect to an alleged act that occurred when he did not hold his office and had nothing to do with his current responsibilities. I mean, with all the responsibilities that the President has, how can we as a country allow his time to be taken up with such things. And indeed, that is exactly why this case was pursued -- to distract him from doing the job that he was elected to pursue.

But the case against Bush is entirely different. That involves allegations that are central to his role as President, and to say that he couldn't be subpoenaed in reference to that would simply add to the likelihood that a President could make his office into a dictatorship (which in fact he is well on his way to doing.)

[understandinglife]

27. "But the case against Bush is entirely different." Indeed. And, the irony

... is remarkabley sweet in this case, for exactly the reasons you note.

Thank you.


Peace.

[EFerrari]

25. Late but here, UL. Thank you.

k&r

:kick:

[fooj]

26. Kick!

Peace.

[understandinglife]

29. "The former Under Secretary of State derided the campaign to discredit ...

... Wilson and was outraged that the White House retaliated against Wilson by leaking his wife's identity to reporters, people close to Grossman said.

Grossman has provided FBI investigators and Fitzgerald with detailed information about the behind-the-scenes effort by Libby and other White House officials to undercut Ambassador Wilson's credibility. Grossman testified before a grand jury that the leak of Plame Wilson's name and CIA status to reporters was an "act of revenge" against her husband's criticism of the administration's use of the uranium claims in President Bush's January 28, 2003, State of the Union address.

<clip>

Attorneys as well as current and former administration officials close to the case said Grossman was the lone dissenting unnamed official quoted in a September 28, 2003, Washington Post story who told two Post reporters that "two top White House officials" called "at least six Washington journalists and disclosed the identity and occupation of Wilson's wife."

"Clearly, it was meant purely and simply for revenge," the Washington Post quoted the senior administration official, whom sources have identified as Grossman, as saying. According to sources, Grossman told the Post that the Plame Wilson leak was "wrong and a huge miscalculation, because they were irrelevant and did nothing to diminish Wilson's credibility."

From Jason Leopold's latest article Libby Filing: A Denial and A Mystery:

http://www.truthout.org/docs_2006/041406A.shtml

George W. Bush willfully violated National Security to cover-up his willful launch of a war of aggression and illegal occupation of Iraq.