VPW - We Arm Wrestle Mark Kleiman

As a natural righty, this "arm-wrestling" seems to work for me.

Mark Kleiman has done a great job of following the Plame Game, aka "Intimigate", or, for Fineman Fans, "Victoria's Secret". His latest post leaves us seeking legal counsel, and scratching our heads.

His gist - the White Hosue has asked the staff to gather their records in order to cooperate with the Justice Dept. investigation. However, the records aren't going to the Justice Dept. right away; they are going to WH Counsel Gonzalez for review. The WH cites national security and executive privilege concerns; Mr. Kleiman smells "cover-up".

Well, on the one hand, national security concerns strike me as legitimate. Executive privilege confuses me here - I think I understand it in the context of a court order or Congressional subpoena, but the Justice Dept. is part of the Executive Branch, and the White House claims to be cooperating. Puzzling.

One wonders what "normal" procedure is in a case like this - if I recall, the initial WH response to Iran-Contra was well regarded (no, I think I read that in Seven Shadows, or whatever the Woodward book was, or maybe it was Bernstein, but don't take my word for it - were you about to? Developing....). Maybe the better approach is for the WH counsel and a Justice dept. investigator to go through the files together.

That said, we have a serious response - supporters and critics have been urging the President to step up and investigate this situation firmly and quickly. Well, his counsel is now reviewing all relevant documents, and critics are now saying that the President can't be trusted to investigate this. Which is it?

And P.S., if we had an independent counsel, I suspect the WH counsel would still review all documents prior to releasing them - that looks a lot like SOP to me.

In other news, we hear Digby calling from the left with the news that maybe the bombshell leak in the WaPo came, not from Tenet, but from Andy Card. We hear you, in trhe bit where we "cling to the notion that the WaPo source is a White House staffer protecting the President at the expense of an underling."

And we can't get enough! Mr. Kleiman seizes on a Bush statement to announce that, in fact, a crime has been committed. No, no, no - this is the same President who famously informed us that Saddam refused to admit inspectors. So, is Pres. Bush speaking of a criminal "action", a criminal "investigation", a criminal "situation", or something else entirely? We will get a clarification from Scott McClellan, and it will be that Bush misspoke.

And in fact, as Mr. Kleiman well knows, the law is murky as to "intent", and other things. I am surprised that he thinks anyone is sure at this point that a crime has been committed, and would think it appropriate for the President to say so - don't we have judges, and juries, and a legal system?

MORE: I am thinking of the Tower Commission, but that was before every investigation was criminalized. The book was not "Dark Shadows", or "Five O'Clock Shadow", but just "Shadow", by Bob Woodward.

UPDATE: NY Times coverage of this outrage:

Administration officials said that before the materials were turned over to the Justice Department they would be reviewed by lawyers in the White House counsel's office to determine if they were relevant. The officials left open the possibility that the counsel's office might assert executive privilege on some materials or withhold all or parts of others for national security reasons.

The counsel's office routinely acted as the gatekeeper for such document requests in investigations into the Clinton administration. But Democrats said they were concerned that the arrangement left the White House counsel, Alberto R. Gonzales, with undue control over potential evidence in a politically charged case.

"I am very troubled by the fact that the White House counsel seems to be a gatekeeper, and I want to know what precautions Justice is taking to ensure that it gets all relevant information from the administration," said Senator Charles E. Schumer, Democrat of New York.

Government officials said they expect the White House to begin turning over the most relevant documents almost immediately, but that the Justice Department may not get all the records for a week or two, under a schedule agreed to by the White House.

Nice job by lefty bloggers, picking up, or anticipating, Schumer's talking points. I have been advised by counsel that this is an issue easily demagogued - the public sort of expects Elliot Ness to burst in with twenty agents who seize every PC and grab every filing cabinet. Real white collar investigations are handled much differently, as Schumer certainly knows.

At this moment, no one is implicating Bush or Gonzalez; the idea that they will fool around with an obstruction of justice charge seems unlikely. But fun to yell about.

MORE: A possible source of confusion - I am laboring under the impression that, as an officer of the court, an attorney, cincluding WH Counsel, has special obligations to respct the legal process. An example of an in-house counsel cooperating with the Federal crimial investigation of his firm is in the news with the CSFB trial. Based on this story, he hardly seems to have pitched in with the document shredding.

And interesting generic advice to corporate evil-doers here.

Comments

[Cecil Turner]

I think the President is on fairly firm ground that a crime was committed. But it's likely the generic one about releasing classified information--which has a lot fewer loopholes than the one pertaining to undercover agents.

But the problem for those who see this as get-W-gate, is that it's increasingly looking like the pot talking to the kettle. Wilson basing his "selective use of intelligence" claim on his Niger trip never made much sense. And as his public statements pile up, it increasingly looks like he's talking for his wife:

"Now, I believe it was done to discourage others from coming forward. At that time there were a lot of analysts who were speaking anonymously to the press about any number of issues related to the intelligence that undergirded the decision to go to war." Meet the Press --Oct 5

"I have every right— and so is my wife—we have every right to participate in the political process of this country. That does not make us traitors to our country." Meet the Press --Oct 5

But they should have moved on rather than try and drag my family into this unfairly. [Crosstalk] But I do think that the reason they did--and I've said this quite publicly--is that they thought that by coming after me they would discourage others from coming forward. The point that they tried to make is that there are consequences if you dare to step forward. And there were any number of analysts who were speaking to the press about the pressure they felt when Cheney went over there. Now I have no way of judging whether that was real or imagined pressure, but you know if they were prepared to say it to the press anonymously they might well have been prepared to come up and say it to their congressman more publicly." Talking Points Memo --Sep 16

I think it's fairly obvious that the only way Wilson can speak authoritatively about CIA analysts' feelings is by asking his wife. And if he's writing NYTimes op-ed's about his wife and her coworkers leaking, they're part of the story.

Hat tip to Tom for the MTP quote. BTW, the new WaPo article clears up her employment timeline (she did in fact join at 22 and continue schooling afterward--as Swopa correctly surmised earlier).
http://www.washingtonpost.com/wp-dyn/articles/A58650-2003Oct7.html

[Jane Finch]

If one can trust the NYTimes, GWB is doing the old bob and weave shuffle on this one...the leaker may never be found! Must be hiding with the WMDs....but serioussly, this is a decisive and ethical response?

[TM]

Jane, you tax me (typical Dem, we note). Honest Injun, is this a decisive and ethical response?

I think the WH as a team should have done more. One reason they have not is that part of the team is on a different page, since the criminal cloud hangs over this. And I agree with Cecil, the specific covert agents act is riddled with loopholes; a conventional "disclosure of classified info" charge may stick, and that point has not been dissected amongst the commentariat.

My theory - Cheney's team, esp. Libby, are urging that it be ignored. Andrew Card has made sure that the President knows the bare minimum (prior to this week, at least) - the CIA filed a routine complaint, DoJ is looking at it. Why? Because almost anything the President does or says may later be construed by someone as participating in a cover-up.

For example, Advisor A says, here is an aggressive plan to seek the leak; Advisor B counsels a moderate approach, which the Pres accepts. Later, A "remembers", in court or Congress, that the Pres did not push hard for a resolution. Bad headline.

The problem is, the legal process gives people rights, loopholes, and an excuse to hide.

Now, if Dems agreed to immunize everyone, get Congressional testimony, and get "the truth", there would be political pressure to sack the evil-doers, and that would be that.

Since I think the legal process leads to a dead end, and I think the outing was an accident (The CIA confirmed her presence on the payroll to Novak and TIME - how covert was that?) the approach above would be the way to find out what happened, and resolve this.

I actually don't think the Dems want to resolve this, BTW - they are getting great headlines, with more to follow - if the DoJ doesn't prosecute, they scream "cover-up"; if a special prosecutor is appointed, that is a good headline; if the special pros. doesn't bring a case, they scream "cover-up"; and so on.

There is a lot of feigned outrage (some is legit) but most of the screaming is by folks who want an excuse to scream.